Under the Immigration Rules the deadline for EU nationals who had been resident in the United Kingdom prior to withdrawal to apply to regularise their status was the 1st July 2021 ( subject to exceptions.)
The Home Office issues guidance to its own case workers on how to apply its discretion in considering applications under the Immigration Rules. These documents may not impose further criteria but can be relied upon where their meaning is more favourable than the Rule.
In guidance of the 16th January 2024 the Home Office adds a new ground where some one seeks a late application on the basis that they had a reasonable belief they did not need to regularise their status:
“ Relevant factors to take into account, based on credible information and supporting evidence, may include that the applicant:
• is a first-time applicant to the EU Settlement Scheme with a residence document issued under the EEA Regulations, indefinite leave to enter or remain under another route or long continuous UK residence identified by the automated checks of tax and benefits records
• has an EEA national spouse, civil partner or durable partner or other close family member or members who applied in-time to the scheme, but believed that they could rely on a residence document issued under the EEA Regulations
• has a compliant positive immigration history
• has received incorrect advice from an employer or landlord since the end of the grace period on 30 June 2021 as to their right to work or rent in the UK without EU Settlement Scheme status
• has travelled in and out of the UK since 30 June 2021 without being signposted to the scheme
The presence of such a factor in isolation may or may not be sufficient to satisfy you, on the balance of probabilities, that the applicant has reasonable grounds for their delay in making their application to the EU Settlement Scheme, but may do so when multiple factors are present and the case is considered in the round. Every case must be considered in light of its particular circumstances and the evidence provided.”
- Home Office guidance 16th January 2024
The fact of holding a EEA Residence Permit may be taken to justify a reasonable belief that an applicant did not need to apply under the EUSS scheme, provided that he or she applies without further delay . The scope for exercising favourable discretion is larger “ has travelled in and out of the UK since 30 June 2021 without being signposted “ but at the same time left to a case by case consideration leaving some confusion as to whether the holder of an EEA Residence Permit has a presumption in his or her favour, or simply a corroborative strand .
Those who have EEA Permits who are in the United Kingdom who have yet to regularise their status under the EUSS scheme should do so. Those EEA permit holders who were in the United Kingdom but subsequently left may wish to apply too.