Have you recently discovered that the permanent residence card you were issued with a while back is not actually valid and it turns out you have been unlawfully in the UK for the last 2 years? If so, you are not alone. We have recently received many enquiries from individuals who thought they were able to rely on the documents issued to them under European Union (EU) law while the UK was still a member of the EU and who have now been told their applications to the EU Settlement Scheme (EUSS) are not valid.
Who needs to apply to the EU Settlement Scheme?
The EUSS was set up in 2018 by the Home Office as a way to implement the Withdrawal Agreement (WA), the international treaty agreed between the UK and the EU member states in order to facilitate UK’s exit from the EU. All EU nationals and their family members who were in the UK were required to apply to the scheme to get a new kind of residence status. This included all those citizens who had been in the UK a very long time and those who had been granted some kind of residence document, including permanent residence, issued under EU law. An EUSS application should have been submitted before 30 June 2021.
What if you did not apply by 30 June 2021?
Up until 9 August 2023, those who were unaware of the deadline and submitted a late application for their new status under the EUSS would generally not have faced any problems. This was because the Home Office accepted most reasons explaining why the 30 June 2021 deadline was missed and why the application is being submitted late.
But on 9 August 2023, the rules changed and those late applications, including those from permanent residence holders, and others who hadn’t realised that they needed to apply, now stand a very high chance of being declared invalid. This is because the Home Office believes most people should now be aware of the EUSS and people will need very strong reasons to convince the Home Office that they didn’t know that they should have applied earlier.
Being declared invalid will leave people without the right to stay in the UK unless they challenge the decision or apply under another immigration route.
How to make your application as strong as possible
If you have not yet applied to the EUSS, then you will need to make sure you present a strong application to reduce the chances of being declared invalid, we recommend:
- Make the application as detailed as possible when it comes to the reasons why you are applying late. There is only a limited text box available on the online application form to explain the reasons for making an application late but you can attach a much more detailed letter with the application by saying ‘please see letter’ in the text box provided. You then upload the letter with your other evidence;
- Include evidence, and lots of it. The Home Office will take into consideration if you have any medical problems or other vulnerabilities which may have affected the reasons why you were not aware you needed to apply to the scheme. The Home Office states that they want certain types of ‘objectively verifiable’ evidence (for example, medical reports) but they have to consider also other kinds of evidence, like supporting letters from family members, so it can be worth submitting these;
- If you have used your ‘permanent residence’ card to travel in and out of the UK since 30 June 2021, then give examples of this in the application as the border force was supposed to tell travellers of the need to apply. Similarly, if the card has been accepted in any other situations then include information about that;
- If it is the case that you knew about the scheme but genuinely believed that you did not need to apply as you already had indefinite status in the UK, point this out in the supporting letter;
- If the application is rejected as invalid, you can still pursue the case by submitting a so called pre-action protocol letter. This can be a very efficient way of challenging the Home Office;
- Use a law firm to assist you with the application. Represented applicants tend to have a greater level of success with late applications. Contact us with details about your immigration situation and what you want to happen to firstname.lastname@example.org. Alternatively, give us a call on 0208 142 8211 or 07538 208 096 and we will call you back.
What happens if your application is declared invalid?
We have been contacted by many applicants who have lived in the UK for many years, thinking they have the right to stay indefinitely, only to then be told by the Home Office that the status they have relied on for years is no longer valid and that their subsequent EUSS application is invalid because the reasons they have for submitting the application being late are not considered ‘reasonable’ in the view of the Home Office.
But these citizens do not necessarily need to despair and should not accept the Home Office decision as final. Seraphus, and other law firms and organisations, have been able to challenge the Home Office’s interpretation of what could be accepted as ‘reasonable grounds’. This term stems from the Withdrawal Agreement and the Home Office have their own understanding of the term, which many lawyers deem far too restrictive, when invalidating applications.
Through a further late EUSS application or challenging the invalidy by using a pre-action protocol letter, we have been able to purusade the Home Office to reconsider their assessment of ‘reasonable grounds’ for submitting a late applications and convinced them to accept these resaons justified the delay in the application.
Hopefully, you now have a better understanding of making a late EUSS application, and what to do if you are now preparing your late application. We are available if you need our assistance.
If you would like more information, follow us on social media. If you need legal assistance with an EU Settlement Scheme application, or have any other questions, you can contact us here, call us on 020 8142 8211, book a consultation here, or send us a question on WhatsApp.