1. Overview of the Recent Changes to the EU Settlement Scheme (EUSS)

This article outlines changes to the EU Settlement Scheme that came into effect on 08 October 2024, as a result of the 10 September Statement of Changes (HC 217), focusing on changes to EUSS deadlines for joining family members. 

2. Who Qualifies as a Joining Family Member Under the EUSS? (Simplified Definition)

Broadly, a joining family member is someone applying under the EU Settlement Scheme as a family member of an EEA national, where the EEA national has status under the EUSS based on their UK residence prior to 31 December 2020 (the end of the Brexit transition period), and where the joining family member was not themselves resident in the UK prior to 31 December 2020. The relevant relationship needs to have begun before 31 December 2020. (This is a simplified definition – someone who was resident in the UK prior to 31 December 2020 can apply as a joining family member in certain circumstances. The rules are complicated and you should seek legal advice based on your specific circumstances.)

For example, a dependent parent of an EEA national, where the EEA national was resident in the UK before 31 December 2020 and has status under the EUSS, but the dependent parent has been living outside the UK, may be eligible to apply to the EUSS as a joining family member. 

3. Key Changes in EUSS Application Deadlines for Joining Family Members

Previously, the Immigration Rules allowed joining family members to apply to the EU Settlement Scheme within three months of their most recent arrival in the UK. The changes introduced from 08 October 2024 mean that, at least on the face of it (see below), joining family members will be required to apply to the EUSS within three months of their first arrival in the UK since 31 December 2020, or show that they have reasonable grounds for making a ‘late’ application. This suggests that joining family members who have visited the UK since 31 December 2020, who now want to live with family members in the UK, will  need to show that they have reasonable grounds for their delay in applying to the EUSS. (See our earlier articles on the EUSS Deadlines and Late Applications and Updated Guidance on Late EUSS Applications). 

4. Exceptions to New EUSS Deadlines: Family Permits and Late Applications

However, there are two major caveats to this that appear to reduce the significance of this change.  

First, it appears that, if a joining family member applies for an EUSS Family Permit, they will then be able to enter the UK on the Family Permit and apply for EUSS pre-settled status, before the expiry of their Family Permit. Having entered the UK on an EUSS Family Permit is considered reasonable grounds for making a late application under Appendix EU. The Rules state that if a person ‘arrived in the UK with an entry clearance that was granted under Appendix EU (Family Permit) to these Rules, which has, or had, not lapsed or been cancelled, curtailed or invalidated’ then ‘the Secretary of State will deem that to be reasonable grounds for the person’s failure to meet that deadline, so that the date of application is […] before the date of expiry of that leave.’ 

Home Office guidance supports this interpretation of the Rules, stating as follows: ‘In the case of a joining family member of a relevant sponsor who was granted an EU Settlement Scheme family permit and arrives in the UK with more than 3 months’ validity remaining on the family permit, the deadline for them to apply will be the date of expiry of the leave to enter granted to them by virtue of having arrived in the UK with that entry clearance. Where that leave to enter has been cancelled, curtailed or invalidated, they will not be able to meet the ‘required date’ requirement and their application must be rejected’.  

The eligibility criteria for an EUSS Family Permit are largely the same as for a direct application as a joining family member, except that the relevant EEA national must be resident in the UK or travelling to the UK within six months of the date of application. 

Secondly, Home Office guidance suggests that, even in cases where a joining family member has not first applied for an EUSS Family Permit, the Home Office may take a more lenient approach to assessing reasonable grounds for delay in  joining family member cases where the application is late only because the family member has visited the UK since 31 December 2020. 

The guidance seems to suggest that a person will normally have reasonable grounds for delay where (1) an application is late because the person visited the UK after 31 December 2020; (2) the person did not overstay their leave as a visitor; (3) they are now applying to the EUSS for the first time; (4) they now wish to stay in the UK with their relevant Sponsor; (5) they are applying to the EUSS as soon as they reasonably can after the change in circumstances leading to their decision to stay in the UK and (6) they are applying within 3 months of their latest arrival to the UK. These criteria are taken from the guidance, which states:

‘In addition, where a person misses their deadline for applying to the scheme as a joining family member of a relevant sponsor (within 3 months of the date – where this was on or after 1 April 2021 – on which they first arrived in the UK after 31 December 2020), because they have visited the UK since 31 December 2020 and left before the expiry of their leave to enter as a visitor (or of their EUSS family permit) and without making an application to the scheme, and they are now applying to the scheme for the first time to join or remain with their relevant sponsor in the UK, you must make an assessment of whether there are reasonable grounds for their delay in making their application. There will normally be such reasonable grounds where, for example, the applicant can show that circumstances are such that they now wish to stay in the UK with their relevant sponsor – for example, so that they can work here – and they have applied to the scheme as soon as they then reasonably can (and, where they have since returned to the UK, within 3 months of their latest arrival).’

5. Reasonable Grounds for Late Applications

The guidance suggests that part of the reason for this more lenient approach is to protect those who visited the UK in reliance on the previous rules on the deadline for joining family members. However, the above guidance also implies that applicants who visited the UK after 31 December 2020 should show that there has been some change in circumstances since their previous visits, such that they now wish to live in the UK. It is not entirely clear what type of change of circumstances is required. The guidance gives the example of a person deciding that they now want to work in the UK, suggesting that it may be enough if a person’s intentions change, rather than a change in external circumstances being necessary. It is also uncertain how this guidance will be applied to someone who visits the UK following the 08 October change to the rules, and then later applies to the EUSS as a joining family member. Someone in this position would not be able to argue that they visited the UK in reliance on the old rules, but there is perhaps scope to argue that they have reasonable grounds for making a late application because their circumstances have changed since their previous visits. 

It should be noted that the guidance also emphasises that this more lenient approach does not apply to ‘those who have previously made an in-time or late application to the scheme which was refused or rejected’, unless they are now applying with an EUSS Family Permit. 

Therefore, despite the changes introduced on 08 October, it seems that a significant proportion of those eligible to apply as joining family members will still be able to advance arguments that their application is valid, even if they have visited the UK since 31 December 2020. However, as outlined above, the changes do create some additional complexity, as it seems applicants in this situation will now need to either apply first for an EUSS Family Permit or make an argument, relying on the new guidance, that they have reasonable grounds for making a late application because their previous UK visits were in reliance on the old rules and guidance. 

6. Additional Updates to the EUSS as of 08 October 2024

Reference to Scope for Automatic Conversion of Pre-Settled Status to Settled Status

The Home Office previously announced plans to automatically convert those with pre-settled status to settled status, where eligible. In an announcement in 2023 it stated:

The Home Office also intends to take steps to automatically convert as many eligible pre-settled status holders as possible to settled status once they are eligible for it, without them needing to make an application. During 2024, automated checks of pre-settled status will establish their ongoing continuous residence in the UK. Safeguards will be in place to ensure that settled status is not wrongly granted.

The Home Office has not yet announced further details of how this process will take place. However, as of 08 October 2024, paragraph EU4 of Appendix EU refers to the scope for the Secretary of State to automatically convert pre-settled status to settled status, where a person qualifies for this, without a person being required to submit a further EUSS application. 

Paragraph EU4 now states that a person with pre-settled status:

‘may be granted indefinite leave to enter or remain under paragraph EU2 or paragraph EU2A of this Appendix, where the Secretary of State is satisfied, without a valid application under this Appendix having been made, that the requirements in paragraph EU2 (where the person has been granted limited leave to enter or remain under paragraph EU3) or paragraph EU2A (where the person has been granted limited leave to enter or remain under paragraph EU3A) are otherwise met’

7. Explanatory Memorandum Highlights

The Explanatory Memorandum published with the statement of changes HC 217 outlines that changes have also been made to:

• Apply the procedural provisions in Annex 2 to the consideration of whether a person granted limited leave to enter or remain under Appendix EU continues to meet eligibility requirements;
• Enable a child applying to the EUSS who was resident in the UK before the end of the transition period, and has turned 21 years of age since then, to rely on the fact that they were aged under 21 at the end of the transition period and therefore have to meet no requirement as to dependency on their parent(s);
• Enable an EEA or Swiss citizen applying to the EUSS as a family member who has retained the right of residence, following the death or divorce of the relevant EEA or Swiss citizen who was resident in the UK before the end of the transition period, to meet simpler criteria;
• Enable limited leave to enter or remain granted under the EUSS (also referred to as pre-settled status) to be curtailed (subject to a right of appeal) for helping a person after the end of the transition period to obtain, or to attempt to obtain, EUSS leave or an EUSS family permit fraudulently.

This article outlines recent changes to the EU Settlement Scheme. For expert advice and assistance with making a UK immigration application, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.