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Home Office confirms important information for EU Settlement Scheme participants

19 October 2021

The Home Office has recently made available important information for those who have already been granted immigration permission under the EU Settlement Scheme (EUSS), as well those who were resident in the UK by 31 December 2021 and are yet to make a EUSS application, or who have one in process.

The information focuses on action points to facilitate smooth travel and to encourage the effective exercise of individuals’ rights under the Withdrawal Agreement.

The information comes from the following two sources:

  • An email sent by the Home Office directly to EUSS participants on 5 October 2021; and A letter sent by the Home Office to stakeholders on 5 October 2021.
  • Further details and their implications are discussed below.

Email from the Home Office to EU Settlement Scheme participants

The Home Office email sent on 5 October 2021 to people both with settled and pre-settled status covers a range of areas as set out below.

Accessing and updating a UK Visa and Immigration (UKVI) account

The Home Office reminds participants to update their personal details on their UKVI online account. This can be done on the Update your UK Visas and Immigration account details page of the GOV.UK website, or through the ‘update details’ function in the View and Prove service.

Travelling to or from the UK

When travelling to or from the UK, the Home Office advises that individuals should travel on a document that has been registered on their UKVI account. Individuals should add new or additional travel documents to their UKVI account through the ‘Update your UK Visas and Immigration account details’ or the ‘update details’ function.

If a participant has not received confirmation that the new document has been successfully added to their account before their travel, they should ideally also carry the document that they applied with to avoid unnecessary delays at the border.

Since 1 October 2021, most EEA and Swiss citizens (‘EEA citizens’) can no longer use their national ID card to enter the UK. They must use a valid passport instead, unless an exception applies.

EEA citizens with status under the EUSS (and certain other individuals with protected rights under the Citizens’ Rights Agreements) are able to use their national ID card for travel until at least 31 December 2025. If intending to use a national ID card, the Home Office recommends that EUSS participants should ensure this is added to their UKVI account before travel.

Switching from pre-settled status to settled status

Individuals who hold pre-settled status can apply for settled status as soon as they are eligible, which is normally after five years continuous residence in the UK, the Channel Islands, or the Isle of Man. The five-year period is counted from the first day of arrival in the UK. At the latest, they should ensure the further application is made before their pre-settled status is due to expire. Further information can be found on GOV.UK here.

To qualify for settled status, normally no more than six months should be spent outside the UK in any 12-month period over the five years. The Home Office provides further information on this requirement and exceptions to it here.

Applications for children

Children must apply to the EUSS if they were resident in the UK by 31 December 2021, are not British or Irish citizens and do not have another type of UK immigration status. Parents can apply on their behalf, and can also link the child’s application to theirs. Further guidance can be found here.

If an EUSS participant or their partner has given birth in the UK after 11 pm on 31 December 2021, and neither individual had settled status, another form of indefinite leave to remain, or British citizenship at the time of birth, and the child is not an Irish citizen, an EUSS application will need to be made on the child’s behalf within three months of the birth. This can be a very short timeframe in practice once the issuing of a birth certificate and travel document are taken into account.

A late application can be made if the deadline is not met, provided there are reasonable grounds for this. The Home Office has to-date taken a liberal approach to this requirement, however there are also hostile environment risks such as being charged for NHS services if an application is not made on time.

If the participant or their partner held settled status, another form of indefinite leave to remain, or British citizenship at the date of birth, a child born to them in the UK will be British by birth and no EUSS application will be needed.

The legal position and process for a child born abroad should be checked, and any required actions completed before the child travels to the UK.

Family members who have not yet applied

The Home Office confirms that family members who became resident in the UK by 31 December 2021 should apply to the EUSS urgently if they are not a British or Irish citizen, and do not hold another form of UK immigration status. This includes family members who are not EEA citizens and those who hold an EEA Biometric Residence Card, even if the card has an expiry date after 30 June 2021.

This is because the deadline for making the application was 30 June 2021, and UK residence documents issued under EU law stopped being valid from this date.

A late application can be made if there are reasonable grounds. The Home Office’s approach in its guidance to case workers is, for the time-being, to give applicants the benefit of the doubt when considering the information provided with an application on the reasons why the application deadline was missed.

Joining family members

There is no deadline for family members who wish to join a person with settled or pre-settled status under EUSS. They can join the scheme participant at any point, provided they make an EUSS application within 90 days of their arrival in the UK.

Further general information on joining family members can be found on GOV.UK here.

Caution should however be exercised by this group when planning their applications and travel plans for entering the UK.

For example, recent Immigration Rule changes allow a joining family member to make an application under the EUSS if they are in the UK as a visitor. However, the Home Office has recently confirmed to our firm that a joining family member may be refused entry as a visitor if they do not meet the visitor Rules in full at the time they enter (including having an intention to leave at the end of the visit). No concession outside the Rules exists for joining family members who know they want to apply under the EUSS before they seek to enter the UK, so the appropriate course of action in the majority of cases will be to obtain an EUSS family permit before travelling.

Pending applications

A person who makes a valid application to the EUSS on or after 1 July 2021 will have their rights recognised while their application is pending, including the right to healthcare and other services, as well as the right to work, study and rent property (in England).

Home Office correspondence with stakeholders

The Home Office sent a letter to stakeholders on 5 October 2021 to confirm advice for individuals who wish to travel to or from the UK with a pending EUSS application that has been made on the basis that they were resident in the UK by 31 December 2020. The letter does not cover joining family members who were not themselves resident in the UK by the end of 2020.

Applicants who applied to the EUSS by 30 June 2021

The letter advises applicants who applied by 30 June 2021 to travel outside the UK/to the UK once they have a Certificate of Application (CoA) confirming they have made a valid application under the scheme. Where sufficient other evidence of the date of application is provided to Border Force, this will be accepted, however this approach carries a risk of being delayed at the border when re-entering the UK.

The Home Office also mentions that these individuals’ rights are protected under secondary legislation while their valid EUSS application and any related appeal is pending.

In direct correspondence to our firm, the Home Office has provided helpful confirmation of the position for an EUSS applicant who was resident in the UK by 31 December 2020, made an application abroad under the EUSS by 30 June 2021 and then entered the UK while it was pending. Such a person will not be required to depart and re-enter once the application has been granted, despite the fact their application will have been for permission to enter (rather than stay) in the UK.

Applicants who applied to the EUSS after 30 June 2021

These applicants are told not to travel outside the UK/to the UK until they have a CoA, and are warned that on re-entry they may also be asked to provide evidence they were resident in the UK by 31 December 2020. They are also told that they will not be able to prove their right to study in the UK unless they have a CoA.

The Home Office confirms the rights of these applicants are protected while their valid EUSS application and any related appeal is pending. This recognition derives from a policy statement released by the Home Office on 6 August 2021, and is not currently supported by any legislation.

If you have any queries about the topics covered in this article, please contact a member of our Immigration Team.

 

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