Employment and pensions

Immigration Update: The Brexit saga continues...

Published on 16th Sep 2021

It is 20 months since Brexit, but many issues that have arisen in the immigration world since the UK left the EU remain unresolved. The government's attempts to publicise the deadline of the 30 June 2021 for individuals in the UK to apply under the EU Settlement Scheme appears to have failed to reach many and contingencies have been put in place. However, the new system for EU nationals looking to come to the UK has many flaws. When can late applications under the EU Settlement Scheme may be considered and what are the issues faced by those looking to come to the UK?

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EU Settlement Scheme: When may I apply late?

As the EU Settlement Scheme (EUSS) had an initial deadline of 30 June 2021 for most people, there have been some exceptions for late applications to be made by EU, European Economic Area and Swiss citizens. In order to do so, they must show that they have reasonable grounds for missing the deadline applicable to them.

In the event that a person has missed their deadline to apply to the EUSS, they can make an application under Appendix EU of the Immigration Rules, in which they would confirm their grounds for failing to meet their deadline.

However, the later the application is submitted since the deadline applicable to the person, the harder it will be for the Home Office to grant the application.

Circumstances in which reasonable grounds may apply are as follows:

  • When a person applies to work or study in the UK, and they have established that their parent, legal guardian or local authority did not apply on time.
  • Where a person has been granted pre-settled status under the Appendix EU, they will be granted five years limited leave to enter or remain in the UK. Once they qualify for settled status, they will be able to apply for EU settled status.
  • Where a person has had a severe medical condition preventing them from submitting prior to the deadline.
  • Where a person is a victim of modern slavery or is in an abusive relationship.
  • Where someone is not digitally advanced in order to access the application process, or if they are isolated or vulnerable.
  • Where someone has compelling or compassionate reasons as to why they could not apply.

However, this is a non-exhaustive list, and every application is said to be considered on its personal circumstances.

Who does this apply to?

Reasonable grounds for submission after 30 June 2021 apply to applicants in two main categories.

Firstly, those who have limited leave to enter or remain. This must have been granted under another part of the Immigration Rules or outside of the Immigration Rules and must not have lapsed, been cancelled, curtailed or invalidated. The date of expiry of that leave must be on or after 1 July 2021. In this situation, the deadline to apply will be considered as before the date of expiry of their leave.

Secondly, those who cease to be exempt from immigration control on or after 1 July 2021. In this situation, the deadline for submission is within 90 days, beginning on the day on which they ceased to be exempt from immigration control.

Visa applications for EU Nationals

The Home Office's recently unveiled new portal for work visa applications is designed to be used by all EU nationals, who have a biometric chip in their passport, when applying for a UK-based visa. The portal is designed so that the applicant has their own log in, along with the immigration advisor as helper (if needed) and can complete their visa applications online. The portal also allows the applicant to verify their biometrics via a specially designed mobile app. This makes the application process much quicker, as there is no requirement for the applicant to attend a biometric appointment. Once the visa is submitted, a section gives a prompt for the required evidence to be uploaded and then the application is sent off for processing.

Once the visa is approved, the visa approval is sent in the form of an email that outlines the dates that the visa is approved (to and from), along with the restrictions attached to the visa. The visa is also linked to the applicants passport number and so, when they enter the UK, border control will be able to see this on the Home Office database.

Although the portal was designed to make the process of EU nationals applying to the UK easier and quicker, we have encountered several fundamental issues. Currently, non-EU national dependents cannot be linked to EU nationals' applications and need to apply separately. This could cause delay as there is no clear answer as to how the Home Office will connect the two applications once submitted. We have further seen issues where a family unit had to apply separately, only for the system to try to link the dependants to a separate lead applicant and, in the process, seek to ask questions that are completely irrelevant to the application.

We are also seeing that applications are taking significantly longer than 10-15 working days to process and to receive a decision. Also, there are currently no means to expedite a decision (as there is with applications made by non-EU nationals). Often clients may seek to apply the "old" way at a biometric centre in order to receive a quicker decision. This, of course, can cause undue delays. We have reached out to the Home Office for further clarification as to how long the average wait time for portal applications is.

Despite the above issues, the portal has often proven to be efficient and easy to use for both the applicant and immigration advisors, which should be celebrated, but with the caveat this only applies when it works.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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