Introduction
Email from Home Office to EUSS participants
Home Office correspondence with stakeholders


Introduction

The Home Office has recently made important information available for those who have already been granted immigration permission under the European Union Settlement Scheme (EUSS), as well those who:

  • were resident in the United Kingdom by 31 December 2021 and are yet to make an EUSS application; or who
  • have an EUSS application in process.

The information focuses on action points to facilitate smooth travel and to encourage the effective exercise of individuals' rights under the Withdrawal Agreement.

The information comes from the following two sources:

  • an email sent by the Home Office directly to EUSS participants on 5 October 2021; and
  • a letter sent by the Home Office to stakeholders on 5 October 2021.

Further details and their implications are discussed below.

Email from Home Office to EUSS participants

The Home Office email sent on 5 October 2021 to people both with settled and pre-settled status covered a range of topics, which are set out below.

Accessing and updating UKVI account
The Home Office has reminded participants to update their personal details on their UK Visa and Immigration (UKVI) online account. This can be done on the "Update your UK Visas and Immigration account details" page of the government website, or through the "update details" function in the view and prove service.

Travel to or from United Kingdom
When travelling to or from the United Kingdom, the Home Office advises that individuals should travel on a document that has been registered on their UKVI account. Individuals should add new or additional travel documents to their UKVI account through the "Update your UK Visas and Immigration account details" or the "update details" function.

If a participant has not received confirmation that the new document has been successfully added to their account before their travel, they should ideally also carry the document that they applied with to avoid unnecessary delays at the border.

Since 1 October 2021, most European Economic Area (EEA) and Swiss citizens ("EEA citizens" collectively) can no longer use their national ID cards to enter the United Kingdom. Instead, they must use a valid passport, unless an exception applies.

EEA citizens with status under the EUSS (and certain other individuals with protected rights under the Citizens' Rights Agreements) can use their national ID card for travel until at least 31 December 2025. If intending to use a national ID card, the Home Office recommends that EUSS participants ensure this is added to their UKVI account before travel.

Switching from pre-settled status to settled status
Individuals who hold pre-settled status can apply for settled status as soon as they are eligible, which is normally after five years of continuous residence in the United Kingdom, the Channel Islands or the Isle of Man. The five-year period is counted from the first day of arrival in the United Kingdom. At the latest, they should ensure the additional application is made before their pre-settled status is due to expire.(1)

To qualify for settled status, normally no more than six months should be spent outside the United Kingdom in any 12-month period over the five-year settlement period.(2)

Applications for children
Children must apply to the EUSS if they:

  • were resident in the United Kingdom by 31 December 2021;
  • are not British or Irish citizens; and
  • do not have another type of UK immigration status.

Parents can apply on their behalf and they can also link the child's application to their own.(3)

If an EUSS participant or their partner has given birth in the United Kingdom after 11 pm on 31 December 2021, and neither individual had settled status, another form of indefinite leave to remain, or British citizenship at the time of birth, and the child is not an Irish citizen, an EUSS application will need to be made on the child's behalf within three months of the birth. In practice, this can be a short timeframe once the issuing of a birth certificate and travel document have been taken into account.

A late application can be made if the deadline is not met, provided that there are reasonable grounds for missing the deadline. So far, the Home Office has taken a liberal approach to this requirement. However, there are also hostile environment risks such as being charged for National Health Service aid if an application is not made on time.

If the participant or their partner held settled status, another form of indefinite leave to remain or British citizenship from their date of birth, a child born to them in the United Kingdom will be British by birth and no EUSS application will be needed.

The legal position and process for a child born abroad should be checked, and any required actions completed before the child travels to the United Kingdom.

Family members who have not yet applied
The Home Office confirms that family members who became resident in the United Kingdom by 31 December 2021 should apply urgently to the EUSS if they are not a British or Irish citizen and do not hold another form of UK immigration status. This includes family members who are not EEA citizens and those who hold an EEA biometric residence card, even if the card has an expiry date of after 30 June 2021.

This is because the deadline for making the application was 30 June 2021, and UK residence documents issued under EU law stopped being valid from this date.

A late application can be made if there are reasonable grounds. The Home Office's approach in its guidance to case workers is, for now, to give applicants the benefit of the doubt when considering the information provided with an application on the reasons why the application deadline was missed.

Joining family members
There is no deadline for family members who wish to join a person with settled or pre-settled status under the EUSS. They can join the scheme participant at any point, provided they make an EUSS application within 90 days of their arrival in the United Kingdom.(4)

Caution should be exercised, however, by this group when planning their applications and travel plans for entering the United Kingdom.

For example, recent immigration rule changes allow a joining family member to make an application under the EUSS if they are in the United Kingdom as a visitor. However, the Home Office has recently confirmed that a joining family member may be refused entry as a visitor if they do not meet the visitor rules in full at their time of entry (including having an intention to leave at the end of the visit). No concession outside the rules exists for joining family members who know that they want to apply under the EUSS before they seek to enter the United Kingdom, so the appropriate course of action in the majority of cases will be to obtain an EUSS family permit before travelling.

Pending applications
A person who makes a valid application to the EUSS on or after 1 July 2021 will have their rights recognised while their application is pending, including the right to healthcare and other services, as well as the right to work, study and rent property (in England).

Home Office correspondence with stakeholders

The Home Office sent a letter to stakeholders on 5 October 2021 to confirm advice for individuals who wish to travel to or from the United Kingdom with a pending EUSS application that has been made on the basis that they were UK residents by 31 December 2020. The letter does not cover joining family members who were not UK residents by the end of 2020.

Applicants who applied to EUSS by 30 June 2021
The letter advises applicants who applied by 30 June 2021 to travel to or from the United Kingdom once they have a certificate of application (CoA) that confirms that they have made a valid application under the scheme. Where sufficient additional evidence of the date of application is provided to Border Force, this will be accepted; however, this approach carries a risk of being delayed at the border when re-entering the United Kingdom.

The Home Office also mentions that these individuals' rights are protected under secondary legislation while their valid EUSS application and any related appeal is pending.

The Home Office has confirmed that an EUSS applicant who was a UK resident by 31 December 2020 and who made an application abroad under the EUSS by 30 June 2021 and then entered the United Kingdom while it was pending, will not be required to depart and re-enter once their application has been granted, despite the fact their application will have been for permission to enter (rather than to stay) in the United Kingdom.

Applicants who applied to EUSS after 30 June 2021
These applicants have been told not to travel to or from the United Kingdom until they have a CoA, and they are warned that on re-entry, they may also be asked to provide evidence they were a UK resident by 31 December 2020. They are also told that they will not be able to prove their right to study in the United Kingdom unless they have a CoA.

The Home Office confirms the rights of these applicants are protected while their valid EUSS application and any related appeal is pending. This recognition derives from a policy statement released by the Home Office on 6 August 2021, and is not currently supported by any legislation.

For further information on this topic please contact Andrew Osborne, Supinder Singh Sian, Kathryn Denyer or Sophie Hunter at Lewis Silkin by telephone (+44 20 7074 8000‚Äč) or email ([email protected], [email protected], [email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.

Endnotes

(1) Further information is available here.

(2) Further information is available here.

(3) Further information is available here.

(4) Further information is available here.