On 30th of June 2021, the deadline for EU Nationals to apply for pre-settled or settled status in the UK came to an end. This article considers the fate of those EU Nationals who have failed to make an application in time.
From the 1st of July 2021, EU citizens are still able to apply for settlement in the UK, however the right to free movement will effectively end on this date. The set of laws that have protected EU citizens from being subject to immigration control by creating the right to free movement will no longer be in place.
Here we will discuss what happens to the group of people who have applied but are awaiting a decision and those who have failed to make an application all together. Based on last week’s government figures there are approximately 400,000 applications pending. It worth mentioning that each application will take months to come to a decision. This figure, however, is not a fair representation of the actual number of people eligible for EU Settlement as there is official list that would keep track of such details. Hypothetically, if we were to assume that 10 persons per 1000 eligible applicants fails to apply for settlement that is still 500,000 applicants who have yet to exercise their settlement rights in time. Now in comparison to the population of the UK (over 65 million people) this may not seem like a very high number, but that is still a lot of people to have their lives uprooted and undecided.
This article is relevant to those who are citizens of EEA and have arrived in the UK before the 31st of December 2021. Any other person who has arrived after this date will be subject to normal immigration controls and are not the subject of this article.
During the leave campaign the EU and UK promised that those EU citizens who already reside in the UK will be granted automatic indefinite leave to remain (ILR) to protect their rights. These rights were partially protected via the withdrawal bill. This is because this promise was not kept as the individuals entitled are not given automatic rights and the applications for settlement are decided on a case-by-case basis and can be refused.
The settlement is more generous than the promise in a sense that it allows those who have been here before the December 2020 deadline and are not necessarily lawful resident to make an application for settlement, an example of this group is students without private health insurance.
Pending decisions
Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (SI 2020 No. 1209) allows those individuals who have made an application and/or appeal and are awaiting a decision to keep their residency rights while their application is being decided.
The withdrawal agreement only protects the rights of those who were present in the UK and were fully complying with EU free movement laws. This excludes certain categories of people such as students or self-sufficient people without Comprehensive Sickness Insurance.
Even for those awaiting a decision there are many other factors which will be checked and impacted before a decision is made e.g., employment status, landlord checks and benefits entitlement.
Missed the deadline
Those who failed to make an application by the 30th of June 2021, can still apply given they have a valid reason as to why an application has not been made within a reasonable further period of time.
As a general rule, those who failed to apply are assumed to be in the UK illegally unless and until they are granted settlement status (under the reasonable grounds principle)
A person who has not made an application passed the deadline can be removed from the UK under Section 10 of the Immigration and Asylum Act 1999. This legislation states any person who needs but does not have permission to leave or remain in the UK is potentially an illegal immigrant unless an application is made to pre-settle or settle as soon as possible. This action puts a pause on the process of deportation until a decision is made as to the status of the applicant in question.
Although the transition period has ended, there are many questions still to be answered and many actions that can still be taken. If you have not applied to the settlement scheme do not hesitate call now.
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