Regaining UK immigration status: EU citizens living abroad with previous period of residence in the UK

Over eight years after the referendum, Brexit continues to play a significant role in the UK’s immigration system. While the transitional provisions put in place under the EU Settlement Scheme have largely been effective in ensuring that Europeans who had been residing in the UK before Brexit can continue to do so, the UK Government is now taking steps to make it difficult for late applicants to obtain status in the UK and we expect this trend to continue in the future.

In this briefing, we look at the steps that those Europeans who had resided in the UK in the years before Brexit (but do not currently do so) can take to regain their residence status in the UK.

Settled Status on the basis of historic residence

If you are an EEA or Swiss national currently living outside of the UK but you previously resided in the UK for a continuous period of five years, it may still be possible to apply for Settled Status using the European Union Settlement Scheme (EUSS).

You may be eligible for Settled Status if you have previously resided in the UK for a continuous period of five years. This means that, during the relevant five-year period, you were not absent from the UK for more than six months in any rolling 12-month period during the period of your residence in the UK.

You will also have to show that, since the end of that period of residence, you have returned to the UK at least once every five years (even if just for a short visit).

Deadline for the EUSS

The deadline for making an application to the EUSS was June 30, 2021, so it may appear that the opportunity to take advantage of a previous period of residence has passed.

However, late applications are still possible where an applicant can persuade the Home Office that they have reasonable grounds for making a late application.

What qualifies as reasonable grounds for a late EUSS application?

The guidance on reasonable grounds for making a late EUSS application is set out in the Home Office caseworker guidance. That guidance sets out the approach that the caseworker will take:

“In line with the Citizens” Rights Agreements, there remains scope indefinitely for a person eligible for status under the EU Settlement Scheme to make a late application to the scheme where, in light of all the circumstances and reasons, there are reasonable grounds for their delay in making their application.”

The guidance does not go on to discuss circumstances in which an applicant is living outside of the UK but has a previous five-year period of residence in the UK. It does, however, discuss circumstances which will not generally constitute reasonable grounds for delay in making an application, including where the applicant states that they were unaware of the requirement to apply for the scheme. The Home Office’s rationale is that since the scheme was introduced in March 2019, there has been a wide range of engagement activities and support for people living in the UK, informing them of the requirements of the scheme. However, this clearly does not apply to a person living outside the UK during the life of the scheme. It is not unreasonable, therefore, to assume that the Home Office tacitly accepts that applicants who have been living outside of the UK for all or some of the period since March 2019 may be entitled to make a late application.

The guidance goes on to direct decision makers to consider any evidence that an applicant had a reasonable basis for being unaware of the need to apply to the EUSS, including where the applicant has a compliant immigration history and has travelled in and out of the UK since 30 June 2021 “without being signposted to the scheme.”

Consequently, if you have a good immigration history and have travelled in and out of the UK since 30 June 2021 without being made aware of the scheme by a Border Force official, a late application for Settled Status should still be accepted.

What happens after submitting a late EUSS application?

For applications made after August 2023, the Home Office will first decide whether it accepts the reasonable grounds provided for a late application before treating it as a valid application. If it finds that the grounds for a late application are not reasonable, it will reject rather than refuse the application.

The consequence of this is that the applicant won’t be given a right to appeal the decision. In addition, despite the above-mentioned guidance, the Home Office is reticent to accept late applications and, therefore, we recommend that you take specialist legal advice when making arguments as to reasonable grounds for a late application. While we have been successful at persuading the Home Office to reconsider and overturn previous decisions to reject EUSS applications as invalid, it is always advisable to make the strongest application possible at the outset. 

Time is of the essence!

With the ultimate aim of restricting the number of new entrants to the EU Settlement Scheme to the bare minimum, the Home Office is likely to further tighten requirements for late applications. We recommend that any application be made at the earliest opportunity.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2024