Clara Smeaton

The UK remains home to approximately 3.5 million European nationals, most of whom should, by now, have taken steps to secure their immigration status.

Never too late to apply

The UK Home Office granted a ‘grace period’ of six months for EU nationals in the UK to apply for one of the two statuses available under the EU Settlement Scheme (Settled Status or Pre-Settled Status).

However, the EU Settlement Scheme was said to be an indefinitely available scheme for EU nationals to apply for. Whether or not that will be the case remains to be seen.

For now, those who qualify can still make a late application and be granted the relevant status, although the longer the delay in applying, the more difficult it may be to justify.

The Home Office has been generous in its allowance of late applications; surprisingly so to those who have had dealings with the Home Office in any other immigration matters.

Permissible reasons for applying late include simply not knowing you should have applied, not being able to use the Home Office app to make your application, or assuming that your previously-granted ‘permanent residence’ as an EU citizen lived up to its name as a permanent right to remain in the UK (it doesn’t).

To ‘qualify’ under the EU Settlement Scheme, a person (an EU national or a family member of an EU national) only needs to have been resident in the UK before Brexit.

There is no minimum amount of time required to prove your residency so, in theory, a person could have arrived in the UK on 30 December 2020, and then made a successful application for Pre-Settled Status.

The less time you were in the UK before making your application, the harder you might find it is to evidence your application. While there is no minimum time to be in the UK before being eligible for Pre-Settled Status, the requirement is ‘residence’ not simply presence.

Therefore, a person whose only evidence of being in the UK before the Brexit deadline is a confirmation of a hotel booking for a week may find it hard to satisfy the Home Office that they were resident in the UK - and not simply on a holiday for the purposes of making an immigration application after seeing the sights.

Keeping your residency status

Settled Status (or Indefinite Leave to Remain) for EU nationals is more allowing than the equivalent status for non-EU nationals, in that you have to be out of the UK for a full five years before your Settled Status will be revoked.

Put another way - you have be outside the UK for as long as you were inside before losing your permanent leave to remain.

The rules for Pre-Settled Status are not so accommodating.

A person who had been in the UK for fewer than five years when making their application would ordinarily be granted Pre-Settled Status.

They have the option to switch to Settled Status as soon as they have been here for five years (without having held Pre-Settled Status for any fixed amount of time first).

However, it takes a lot less to lose your Pre-Settled Status than it does to lose your Settled Status.

The central feature of the EU Settlement Scheme is residence in the UK: a ‘continuous period of residence’ is required by Appendix EU to the Immigration Rules. For a person with Pre-Settled Status, this means not being out of the UK for more than six months in any twelve month period.

In a Covid-less world where easy international travel was still possible, an EU national with Pre-Settled Status who went on 12 two-week holidays between June 2020 and June 2021 would lose their Pre-Settled Status.

However, if such a person left the UK for a single absence which lasted six months and one day, or even eleven months and one day, they would fall into an exception allowing an absence of over six months but under 12 months as long as the absence was for an ‘important reason.’

In the pre-Covid world, important reasons included, for example, pregnancy and childbirth, studying a course, or caring for an unwell family member.

Now, however, an important reason includes Covid-19 and all the disruption that went (or goes) along with it, as the Home Office have explicitly added Covid-19 to the list of possible concessions that can be made by case workers deciding applications.

Unexpected immigration benefits due to the pandemic?

As a result of the Covid-19 pandemic, many people found their application, or their Pre-Settled Status affected.

For some, it meant they missed the deadline to apply for Pre-Settled or Settled Status, as they were outside the UK when they would otherwise have been here but had been prevented from travelling by lockdown and various international restrictions.

For others, they had Pre-Settled Status before flying to their home countries but were prevented from coming back for up to a year, for the same reasons as above.

Both of these scenarios are likely to be considered an ‘important reason’ for either missing the deadline to apply under the EU Settlement Scheme or for being outside the UK longer than the six months that should have been allowed in order to maintain their Pre-Settled Status.

But there may be a third group of people who benefit from the Covid-19-related concessions: those who moved away from the UK without intending to come back, but who changed their minds (after their six month buffer had passed).

Those people too may still make an application for Settled Status and blame their absence on Covid-19 rather than on the fact that they had decided to move elsewhere to live.

The Home Office may well consider that to be an abuse of the concession, or an application being made in bad faith. But the reality is that Covid-19 applied to everyone and it is very difficult to look behind an assertion that a person was adversely affected by the pandemic.

Those who left the UK with the intention of coming back, and those who left with no such intention, were prevented equally from returning when international flights were prohibited or strongly discouraged.

Should people who are making applications to switch to Settled Status be expected to tell the Home Office that they had intentionally moved away from the UK and therefore may not qualify for the concession despite having decided to move back?

It is unlikely that those with Pre-Settled Status would inform the Home Office of this to their own detriment, particularly given the Home Office’s reputation for a lack of transparency and fairness in immigration matters.

While the Home Office were, for a while, accepting the Covid-19 pandemic as a reasonable excuse for all manner of otherwise irregular immigration activity, these concessions are beginning to tail off and can not always be dependably relied on.

For the purposes of the EU Settlement Scheme, it seems that the absence of concessions may continue for some time to come, at least as long as late applications are still being allowed.

Where a person makes their application and claims to have been affected by the pandemic, it will be difficult for the Home Office to prove otherwise and attempts to do so are likely to give rise to greater numbers of appeal and administrative review.

With applications under the Settlement Scheme being short and free, many EU nationals and immigration practitioners now realise that it is still worth submitting applications for what would otherwise be ‘borderline’ cases.

With the Home Office already behind in meeting its own targets for deciding applications, it may realise that has Covid-19 has, in practice, created a second ‘grace period’ for EU nationals and attempting to distinguish between all those who try to rely on the Covid concession is simply not viable.

Clara Smeaton is a senior solicitor at Burness Paull