The EUSS was created under the European Union (Withdrawal Agreement) Act 2020 and the Citizen's Rights Agreements with EEA and Swiss citizens and their families.
The EUSS provides these citizens and their family members an opportunity to apply for a legal immigration status that will enable them to enter and remain in the UK.
Types of applications
Under the EU Settlement Scheme, individuals can be granted either:
- A EUSS Family Permit, Indefinite Leave to Enter (for out-of-country applications),
- Indefinite Leave to Remain (for in-country applications).
- Indefinite Leave to Enter/ILR (also known as Settled Status for our-of-country applications)
- Limited leave to enter for five years (for out-of-country applications)
- Limited leave to remain for five years (also known as Pre-Settled Status for in-country applications)
Generally speaking, to be eligible to apply for Settled Status under the EU Settlement Scheme, you must have been living in the UK by the end of the Brexit transition period, 31 December 2020.
Eligible family members for residence under EUSS
Some other ways a person may get pre-settled status include newborn and adopted children.
Depending on the previous residence in the UK before 31 December 2020 (if any), there are different ways to apply for settled or pre-settled status for:
- spouses
- durable partners
- children or grandchildren under 21,
- dependent children or grandchildren over 21,
- dependant parents or grandparents
Suppose you fit in one of the above categories and meet the condition regarding previous UK residence. In that case, you may apply for EUSS status as a Joining family member (see our family permit section). Alternatively, if you are an EEA national, you may apply using the standard process for EUSS applications (pre-settled status).
You may be eligible to apply for Settled Status (ILR) at any time when you meet the requirements of the EU Settlement Scheme, generally speaking, five years of continuous residence in the UK.
What happens with my status if I leave the UK for a long time?
There are several issues regarding leaving the UK for an extended period when you hold pre-settled status. Firstly, you must demonstrate continuous residence in the UK to qualify for settled status. Briefly, you should have travelled abroad for less than six months in any 12 months. Secondly, leaving the UK for longer than two years leads to cancelling your pre-settled status.
If you hold settled status, you should know that an absence of 5 years or longer results in the settled status being cancelled. A trip to the UK before the five years has passed will "reset" the five years.
My application was refused. Can I re-apply?
The short answer: you have the right of appeal, and in some circumstances, you may submit an administrative review instead. Re-applying is not a suitable option.
The Home Office’s published guidance takes into consideration two situations:
"Where a person has already made an in-time application to the EU Settlement Scheme, and this Application has been refused, they will not usually be able to make a late application to the scheme based on there being reasonable grounds for their delay in making their application, as they previously met the deadline applicable to them. They will not normally therefore be able, after the deadline applicable to them, to make a further, successful application to the scheme."
"Where a person has already made a late application to the EU Settlement Scheme, with reasonable grounds for their delay in making their application, and this Application has been refused, then they will not normally be able to establish that there are reasonable grounds for them to make a further late application to the scheme. Whether they can establish such reasonable grounds will, however, depend on the particular circumstances of the case."
The rules can be complicated in this area, and I suggest you get specialist advice.
What is the meaning of “false representations” in Immigration applications
Briefly, “false representations” means making a claim to the Home Office eighter orally (e.g., during an interview) or in an application form.
There is a distinction between genuine, innocent mistakes and false representations. The Home Office’s guidance takes into consideration various factors that will guide the decision maker in determining the answer:
- What are the chances of making an unintentional error?
- What is the probability that the applicant was unaware that the information had been given?
- What is the probability that the applicant or the person supplying the data know the data is inaccurate?
- What advantages does the applicant gain from the false information?
- Does any other answer on the application form or any documents provided with the current or a previous application contradict this answer?
- Does any information on the passport or ID document contradict any answer provided?
Decision-makers must consider if the false information given by the applicant would be advantageous to them when deciding to refuse their application on a discretionary basis.
If the Home Office believes that a false statement has been given, the applicant should be given the chance to explain any incorrect information before the application is denied.
Making a misstep on an immigration application form can result in serious consequences. If the error is perceived as an effort to mislead or cheat, the application will be denied. In addition, if the application was for entry clearance, a ten-year prohibition against re-entering the UK will be enforced. To prevent this from happening, one should be mindful of court cases and Home Office policies.
Do I need a Lawyer for my EUSS Application?
Suppose you or your family member meet all the requirements, have a continuous residence, and record in your HMRC account through employment or self-employment. In that case, these applications can be straightforward and require minimum effort from an applicant. Not all applicants are in this situation.
The Home Office applies a strict approach when dealing with applications made by dependant family members and durable partners, and the rate of refusals is high. You should be aware that an immigration refusal may damage your immigration history and can result in subsequent refusals from the Home Office.
I outline below some circumstances that require understanding the legislation and legal precedents. The rules applicable in these cases are very complex and are not usually available in the summary description of the applications found on the official website.
- Surinder Singh cases (The Surinder Singh route enables British nationals residing in the European Economic Area to return to the UK with their family members.)
- Zambrano Cases (The Zambrano case established that, about UK immigration, the primary carer of a British citizen living in the UK has a right to remain in the country under EU law if their departure would necessitate the British citizen to leave the European Economic Area (EEA))
- Retained rights of residence (Death, Divorce, Domestic violence)
- Dual national (British and European) Sponsors applying for their family members (see EUSS Family Permit section)
If this applies to you, we suggest you reach out to our team of Immigration Lawyers to determine if you are eligible to apply for pre-settled or settled status, as well as the documents you need to submit.
