Six pitfalls to avoid with EU Settlement Scheme
Despite the EU Settlement Scheme (EUSS) being publicised as simple and straightforward, there are many potential pitfalls for the unwary, particularly when the circumstances of the COVID-19 pandemic are factored in. To avoid them, individuals must be aware of the scheme and get to grips with it before the end of 2020 because, in some cases, assessments and actions must be completed by then, despite the main deadline for the scheme being 30 June 2021.
This article sets out some of the potential pitfalls and suggestions for how to avoid them.
People unaware of scheme and when they must apply or take other actions
The Home Office’s latest statistics show that by 30 September 2020 more than 4 million people have applied under the EUSS, but the total number of people who are eligible to apply is currently unknown.
As the scheme is an application rather than a registration scheme, those who are currently living in the United Kingdom and must apply but fail to secure their status thereunder will have no lawful immigration status in the United Kingdom beyond 30 June 2021. The Home Office will be able consider late applications with a reasonable excuse; however, individuals who apply out of time will not have the right to work, rent or access free healthcare until their application has been approved.
The 30 June 2021 deadline also applies to individuals currently living abroad who acquired permanent residence status in the United Kingdom less than five years ago. As permanent residence status is lost after a two-year continuous absence from the United Kingdom, it is highly likely that some individuals who are eligible to apply may think that the scheme does not apply to them.
The situation can also be more complex for family members who may potentially fall within the scope of the scheme, but who must act by 31 December 2020 to secure their eligibility. For example, in many cases the relevant family relationship must be established by 31 December 2020.
A recent report by the Migration Observatory outlines a range of reasons why people may fail to secure status under the EUSS, which includes people who are still unaware of the scheme or think that it does not apply to them.
There are also potential issues that may arise where employers, landlords or others are unaware:
of the grace period from 1 January 2021 to 30 June 2021; or
that EUSS status in many cases will be verifiable only online.
Where an eligible person has not yet obtained status under the EUSS, or cannot present physical documentation confirming their status under the scheme, there is a risk that they may incorrectly have employment or rental accommodation refused or terminated or they may be denied other services.
Actions to take to avoid issues arising include the following:
Employers can minimise potential disruption to their business by sending periodic firmwide communications with information on the scheme and supporting members of their workforce to apply. This support can range from providing signposting to more detailed information to arranging advice sessions or supporting the cost of immigration assistance for the process.
Employers with European offices may choose to include information on the EUSS and frontier worker permits as part of communications relating to Brexit.
Individuals can choose not to wait until the grace period to make their application, ensure that they read the government guidance in their approval letter (which they will receive by email) on how their status can be verified and share this information with relevant third parties.
Applying under EUSS when it is unnecessary
Some EEA national children born in the United Kingdom may be British by birth and should therefore not make an application under the EUSS. This is because such children have the right of abode in the United Kingdom and are not subject to the Immigration Rules.
Actions to take to avoid issues arising include:
checking whether an EEA national child is a British citizen by birth; and
considering making a British passport application for a child who is a British citizen in order to evidence their British nationality and facilitate their travel to and from the United Kingdom after the end of the transition period.
People not lawfully in United Kingdom during post-transition grace period
Draft regulations published on 21 September 2020 confirm the government’s intention to allow EEA nationals and their family members who are lawfully resident in the United Kingdom by 31 December 2020 to be covered by a grace period to enable them to apply under the EUSS after the end of the transition period. The grace period will last from the end of the transition period on 31 December 2020 until 30 June 2021. It also extends beyond 30 June 2021 where an individual has an EUSS application or related appeal outstanding.
However, the problem for some people is that the benefit of the grace period will not apply to those whose residence in the United Kingdom is not in line with the requirements of the current Immigration (European Economic Area) Regulations 2016. Obvious examples of people who would be excluded are students and the economically self-sufficient who do not hold comprehensive sickness insurance.
The consequence of not being covered by the grace period is that a person will be exposed to hostile environment measures until they are granted leave under the EUSS. This includes not being allowed to work, rent private accommodation or access free healthcare.
Actions to take to avoid issues arising include:
ensuring comprehensive sickness insurance is in place by 31 December 2020 for individuals who are students or economically self-sufficient; and
submitting applications under the EUSS as soon as possible, with a view to minimising or eliminating the time that the applicant is in the United Kingdom without lawful status.
Applicants not understanding residence requirements for settled status
If a person with pre-settled status spends more than six months in any 12-month period outside the United Kingdom, this will break the continuity of their residence for settlement eligibility purposes. There is an exception that a single absence of up to 12 months for an important reason (eg, childbirth, serious illness, study, vocational training or an overseas work posting) can be ignored. Compulsory military service and being abroad as a Crown servant, armed forces member or their family member will also be ignored.
The Home Office has produced no specific policy on how absences due to COVID-19 will be treated for the purpose of settlement under the EUSS; however, this may be produced at some point in the future.
However, it is clear that as long as a fresh continuous residence period is started by 31 December 2020 following a break in continuous residence, it is possible to make a further application for pre-settled status by 30 June 2021. Otherwise, where continuous residence has been broken, it would be necessary to qualify for an extension of stay under one of the categories of the new UK immigration system or depart the United Kingdom before the expiry of the pre-settled status.
Actions to take to avoid issues arising include:
reviewing absences in the lead up to 31 December 2020;
ensuring that a fresh period of residence in the United Kingdom commences by 31 December 2020 if continuous residence has been broken; and
making a further application for pre-settled status by 30 June 2021.
Applicants not meeting residence requirements for naturalisation
The residence requirements for naturalisation are different from the requirements for settlement, and this should not be ignored by people who wish to obtain British citizenship, particularly in view of the travel and other disruptions caused by the COVID-19 pandemic.
In recognition of the effect that the pandemic is having on international travel and in particular absences from the United Kingdom, on 2 September 2020 the Home Office published an update to its naturalisation guidance. The update confirms that where an applicant has absences from the United Kingdom of between 480 and 900 days during the qualifying period for naturalisation (or between 300 and 540 days for applicants with a British spouse), their excess absences may be ignored if they were unable to return to the United Kingdom due to a global pandemic.
Absences of more than 100 days but no more than 180 days in the final year of the qualifying period may also be ignored if the applicant was unable to return to the United Kingdom due to a global pandemic. There is also discretion to ignore a higher level of final year absences in limited circumstances.
In most cases, applicants will also need to have established their home, employment, family and finances in the United Kingdom.
Actions to take to avoid issues arising include:
understanding what the residence requirements are for naturalisation (ie, eligibility may be adversely affected if the applicant spends more than 450 days outside the United Kingdom during the five-year qualifying period or 270 days over the three-year qualifying period (for those with a British spouse or civil partner) or more than 90 days outside the United Kingdom during the 12 months before the application);
recording and monitoring absences from the United Kingdom;
avoiding non-essential international travel outside the United Kingdom until travelling conditions become more predictable; and
considering whether absences from the United Kingdom during the COVID-19 pandemic are due to an inability to return to the United Kingdom or a preference – in the latter case it may be that excess absences will not be ignored.
Applicants not understanding implications of end of transition period for naturalisation applications
Naturalisation applications for people with a UK permanent residence document can be submitted 12 months after the date that the Home Office has recognised on the permanent residence approval letter; however, the Home Office has confirmed that individuals who have a permanent residence document will be unable to apply for naturalisation based on this after 31 December 2020 if they have also been granted settled status under the EUSS. They must wait until at least 12 months have elapsed from when they were granted settled status. Naturalisation applicants must also build in time to prepare for and pass the Life in the UK Test unless they are exempt from this requirement.
Individuals who have a British citizenship application pending on 30 June 2021 (the main in-country deadline for applications under the EUSS) must make an application under the EUSS by 30 June 2021, otherwise they will be considered to be an overstayer.
Actions to take to avoid issues arising include:
submitting any naturalisation application relying on a permanent residence document before 31 December 2020 if eligible; and
submitting an application for settled status under the EUSS by 30 June 2021 if an application for naturalisation is still pending at that point.
U.K. Government Releases Details on Post-Brexit Immigration System
Big News! Like a earthquake!
On 13 July, the U.K. government released further details about the U.K.’s future immigration system, which will apply to EU and non-EU nationals from January 2021. Under normal circumstances, such a significant change would be top of mind for companies operating in the U.K., but it has slipped off the business world’s radar as leaders grapple with the COVID-19 pandemic and related economic challenges.
But the immigration system in the U.K is going to change, regardless of how prepared the business world is for the new system. The U.K. government has made clear that it is still committed to roll out this new system first thing next year.
This new system has been created to reflect more flexibility for employers while also ensuring EU and non-EU nationals are treated equally. The 130-page document doesn’t contain a lot more detail than the proposals released earlier in the year, but there a number of details to be aware of.
End of free movement for EU What does this mean for employers with EU-national employees? What about for EU nationals currently living in the U.K.?
Changes to skilled worker migration. What changes to skilled worker migration will impact companies looking to recruit foreign migrants using this route?
Practical preparatory steps for employers. What can employers do now to prepare to comply and adapt to a new immigration system?
You can’t just decide to not obey the law, immigration officials informed
On 4 August 2020, the Home Office issued new guidance to its civil servants on how to respond to immigration appeals that the department has lost. The 18-page document can be found here (pdf download). For the most part, the guidance is welcome. Anyone who has ever won an appeal knows the pains of writing to the post-decision team again and again trying to actually get the decision implemented. The new guidance looks to eradicate or at least minimise that.
The guidance acknowledges straight off the bat that:
It is unlawful to “deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it” Mersin (2000) EWHC Admin 348.
This is, unfortunately, how it feels for a lot of practitioners. In the most recent appeal I did, it took four months and a pre-action protocol letter complaining about the delay before the decision was implemented.
Entry clearance appeals are even worse because applicants usually need to hand in their passport, meaning it’s common to wait for the better part of six months from the appeal being allowed to the visa being issued. That may not sound like long but that’s potentially another six months of separation for a torn-apart family, or six months of lost employment income for someone struggling to pay the bills for lack of a right to work.
Presumably this new approach is an attempt to reduce any complaints/claims arising from delay. The guidance acknowledges those risks:
An allowed appeal should be implemented promptly, otherwise the individual may not be able to access benefits and services to which they are entitled, and they may bring a judicial review challenging the delay in implementation.
Another useful bit of clarification is that, where the determination finds that the relevant Immigration Rules are met, the Home Office agrees that it should grant the leave or entry clearance provided for in those rules.
This is particularly important in Appendix FM cases. There was a period of confusion when the Immigration Act 2014 was implemented because appeals could no longer be brought on the basis that the decision was not in accordance with the Immigration Rules. We had to do a detour and explain why that misapplication of the rules was a breach of human rights in order to appeal against certain decisions. That led to a lot of people who were successful being granted leave on the ten-year route to settlement rather than the five-year route, because the Home Office considered they had been successful on “human rights grounds”. Being forced to wait double the time for settlement means spending huge chunks of cash on extension applications. Having this clarity is a welcome addition, even if it does come five years late.
The guidance is also arguably more generous than necessary. It notes that where a parent’s appeal has been allowed but where a dependent child did not appeal the same decision, the caseworker:
should consider whether implementation of the allowed appeal has implications for the dependants and, if so, take the necessary action.
It also does a decent job of telling officials to stop moaning about judges and get on with the job:
You cannot decide not to implement an allowed appeal because you think the Tribunal had no jurisdiction to allow the appeal. Any dispute about the Tribunal’s jurisdiction must be raised at the appeal or in an onward appeal. Where the jurisdiction of the Tribunal is not successfully challenged, the determination of the Tribunal will be valid and must be implemented.
The Tribunal is responsible for interpreting the law. Where the Tribunal allows the appeal any disagreement about the decision must be raised at the appeal or in an onward appeal, otherwise the appeal must be implemented. You cannot refuse to implement an allowed appeal simply because you do not agree with it.
The one part where this guidance falls down is where it talks about facilitating re-entry for people who were removed from the UK before their appeal. This might be if their human rights claim was certified as “clearly unfounded” or — the one that still annoys me the most — people who were removed during pending EU law appeals.
In those cases, you would expect the Home Office to do the legwork. After all, you’ve won your appeal and been considerably inconvenienced by potentially having left your job and your family behind.
eBook Visit visa refusals: how to challenge decisions
Full guide to visit visa applications, appeals and judicial reviews for family and general visits to the UK, including how to prepare and what to expect on the day.
Not so, says the guidance. The template letter to be issued to successful appellants says that they must formally apply to return online (selecting “the return to the UK” option at this link). So that’s exactly what I did, filling in the form from the point of view of someone whose appeal was successful.
There is no application fee but the process is as tortuous as ever. Why do you need to know my parents’ names and every country I’ve travelled to in the last ten years? They also have the audacity to make you go through the usual appointment booking process, meaning you need to register on VFS Global or TLSContact websites with their Kafkaesque technical issues. You are then treated like any ordinary punter and are even offered paid-for slots at the visa centres.
The document is silent on who pays the airfare for a successful appellant to return. No doubt the Home Office will try to dodge responsibility in the usual manner.
The idea that someone who was removed on foot of an unlawful decision should then need to pay for their flight back to the UK, or for appointments to get their return visa, sounds outrageous but is potentially not illegal. After R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 in the Supreme Court, there was a rush of cases where people tried to return pending their appeals, but the Court of Appeal said that there is no presumption in favour of return even if the underlying decision was unlawful.
All in all, this guidance does a decent job of ironing out some creases but I suspect it’s just going to encourage more litigation on some bigger issues.
