The deadline for most applicants to the EUSS was 31 June 2021, following the significant publication that took place in the lead-up to that date to encourage eligible EU citizens to apply.
It is now a validity requirement for applications made on or after 9 August 2023, rather than an eligibility requirement as stated previously. The Home Office’s decision to accept the application after the deadline depends on whether the applicant has provided sufficient grounds for the delay. Note that this decision is made before the application is officially validated. If the decision is unfavourable, the application will be outright rejected instead of being refused. This is a stark departure from the previous practice, where grounds for delay were effectively considered at a later stage and applicants were given the ‘benefit of the doubt’ by the Home Office, meaning late applications were more likely to be accepted.
A caseworker’s steps to assess validity:
- If no information is given as to why there has been a delay, or the information does not constitute reasonable grounds (as set out in the guidance), the application can be immediately rejected.
- If information is provided, that seems to constitute reasonable grounds, but no or insufficient evidence is provided, the caseworker should write to the applicant and give them 14 days to provide supporting evidence.
- If a caseworker has doubts about the authenticity of evidence, they may immediately reject the application.
The rejection letter will set out the reasons for rejection and detail why the caseworker is not satisfied that there are reasonable grounds for the delay in making the EUSS application. Applicants are permitted to reapply after rejection.
Reasonable grounds for delay
Applicants must now prove to the Home Office the balance of probabilities, and based on information and objectively verifiable evidence, the reasons for their late application. This marks a change from the previous guidance which allowed applicants to be ‘given the benefit of the doubt’ with regards to the information they submitted.
A non-exhaustive list of reasonable grounds within the guidance include:
- A person who was exempt from immigration control can apply for and, where they qualify for it, be granted status under the EUSS while they remain a person exempt from immigration control (usually for 90 days after their existing exemption from immigration control ceased). Late applications can be made after those 90 days if there are reasonable grounds for the delay.
- Where a person lacks the physical or mental capacity to apply to the EUSS and has continued to do so since the deadline applicable to them.
- Where persons have existing indefinite leave granted under a different part of the Immigration Rules or automatically elsewhere, they may apply if they have been or are planning to be outside the UK for more than two years but less than five. However, they will still need to provide evidence of reasonable grounds for delay.
- For children, it will now generally constitute reasonable grounds for delay where a person becomes aware as an adult that an application to the scheme should have been made for them when they were under 18. The application will need to be made in a reasonable period from the moment they became aware of this, and relevant evidence will need to be provided.
- Where a person was prevented from applying because they are or were a victim of domestic violence or abuse (or the family member of such a victim), or they are or were otherwise in a controlling relationship or situation which prevented them from applying by the applicable deadline.
Significantly, circumstances that will no longer constitute reasonable grounds include where the applicant:
- Had no internet access, limited computer literacy or English language skills.
- Was unable to access support due to Covid-19 restrictions.
- Overlooked the deadline due to work/study personal circumstances.
For repeat applicants (after rejection or refusal) the guidance has also been toughened and now specifies that exceptional circumstances where a late further application could be accepted include where there is good reason the applicant did not previously engage with the Home Office’s attempts to contact them for information or evidence on eligibility by reason of an underlying physical or mental condition.
Implications for employers
Previously, a Certificate of Application (CoA) was issued shortly after receipt of an application under the EUSS, which allowed for employers to conduct right to work checks. From the 9th of August 2023, the CoA will only be issued once the Home Office has thoroughly evaluated and acknowledged the existence of valid justifications for submitting a late application. As a result, employers may experience longer waiting times for the issuance of a CoA and for their employees to legally commence work, depending on the number of applications and the availability of caseworkers.
If an employee’s EUSS application is deemed invalid under these new regulations, they may be required to seek alternative immigration authorisation (such as joining a family member under EUSS if eligible or pursuing a sponsored route) or depart from the United Kingdom. Depending on the circumstances, they may not have permission to work while an alternative application is considered.
This could cause problems for employers who have found an employee in their workforce (who could have but did not, apply under the EUSS by the required date). The new process could lead to delays in the employee providing their employer with evidence of an application within the 28 day timeframe set out in the Employer’s Right to Work guidance – if this evidence is not provided in time, the employer may need to take steps to dismiss the employee for not having appropriate immigration permission.
If you would like to discuss these changes or require bespoke immigration advice, get in touch with our team of expert immigration lawyers.
