Registered UK immigration adviser, Alexandra Varga, answers your questions about the EU Settlement scheme, including how to prove your right to work if your application is still pending, allowances being made for late applications and how to bring family to the UK under the scheme.

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Recorded on 20 August 2021.

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Episode transcript

(This transcript has been lightly edited for clarity)

Tallulah van der Made: Hello, and welcome to the fifth episode of the Sable International UK Citizenship Podcast. My name is Tallulah and I'm here with Mishal Patel and Alexandra Varga, to answer your questions about the EU Settlement Scheme. Alex is an immigration adviser registered with the UK OISC. She has been working closely with clients and the Home Office in preparing and submitting EUSS applications, so she's the woman in the know. Thank you so much for joining us today, Alex.

Alexandra Varga: Thank you for having me. These are very important issues to talk of at this time.

The current situation with the EU Settlement Scheme

TV: I think to start, can you give us a quick overview of the EU Settlement Scheme and where things are at the moment?

AV: So, as you probably all know, the UK left the European Union last year. Basically, to put it short, in order to be able to stay if you were an EU national or their married partner, children, mother, father, or adopted children even, then you had to apply for either your indefinite leave to remain – so that's like indefinite permission to stay and work in the UK – or for your limited leave. So that will have been issued for five years. 

TV: So that's the settled versus pre-settled? Settled is the ILR equivalent and pre-settled is the limited? 

AV: Yeah, the language is… there are more than one word for the same thing. 

Mishal Patel: So where's the scheme now? I know, obviously, it's ended. What's the situation now? 

AV: There’s a huge backlog. So the scheme officially ended on 31 June 2021, for first applications, but I will put a star in here and get back to that because it's not completely true. As with everything with the EU side of things, this is complex, but largely it has ended for first applications in June. 

The website is still saying that the processing time is five working days. This is unfortunately far from being true.

In June alone, it was broadcasted that 300,000 people applied to the scheme. So the backlog is huge with the Home Office. I'm sure they are doing their best, but there can be huge delays. The website is still saying that the processing time is five working days. This is unfortunately far from being true. However, since there is no self-imposed deadline as to how long the Home Office can actually take looking at these applications, in theory, they could take their time.

How to prove your rights in the UK while your EUSS status is stuck in “pending”

MP: So a lot of people are obviously concerned about whether they can work, rent, open bank accounts, get mortgages, and all these important things that one needs to do when they’re in the UK or settling in the UK. So, with 300,000 or so applications, many pending, could you maybe shed some light on how they can prove their status in the UK whilst the application is pending? 

AV: Yes, sure. If the application is still pending with the Home Office for settled or pre-settled status, if someone is an EU national, then they can log into their account. Basically, there is a Home Office link you can go to. Then the website will ask for your passport number or ID number that you applied with and your date of birth. You log in there and from there, you can generate the code.

You need to provide this either to your landlord or your employer, school, whoever is asking. And then they will know where to insert this and this will prove your status pending application. This is only open for EU nationals, and only for those who've  already been issued a certificate of application by the Home Office.

MP: Okay, well, naturally, the question would be what if I don't have a certificate of application?

TV: Or family members?

AV: There is a service provided for by the Home Office whereby landlords and employers or potential employers can check someone's immigration status pending application. Basically, what the problem is with this route is that you can't force landlords and/or employers or potential employers to actually check the immigration status. So, unfortunately, these applicants may find themselves in the situation that they are left without recourse.

MP: Right. But if an employer wanted to, they could go down that route. If someone has applied for pre-settled or settled status and hasn’t received the certificate of approval yet – which comes in by email – that would be the recourse for the landlord, employer or potential employer?  

AV: Yes, the certificate of application is an official email attachment sent to the email address that was used for the application. You just click on it, enter your details, and then you can generate this code. This is also important because once an application is approved for EU nationals, they will have to use the same account to keep their data up to date with the Home Office. They will still be under a legal obligation to update the site of their own accord should their passport or ID change or should they ever move or even if their phone number or email address changes.

The class of people who can check the status of non-EU family members’ immigration, pending application, is restricted to landlords and employers and potential employers.

MP: And that’s after it’s been approved as well? 

AV: Yes. This is also important in terms of travelling because EU nationals will not have any biometric residence cards, whereas their family members who are not from the EU, they can. So, not all of them will automatically, but everyone has the option to apply for one if they are not from the EU. 

TV: So just to summarise, if they go to that link, it will then show employers or whoever needs the proof that it is currently pending. 

AV: If it's pending then it will say, “This person called this and that who was born on such and such date has the right to work and reside in the UK, pending application”. Once it's approved, it will say that this person has settled or pre-settled status. If it's pre-settled, it will probably even say the date until which they have the status.

TV: And family members, then, if it's still pending, they wouldn't have been issued the card yet. How would they prove their right to work in the UK?

AV: They cannot. But the employer or the landlord… I mean, the class of people who can check the status of non-EU family members’ immigration, pending application, is restricted to landlords and employers and potential employers. Unfortunately, it is not open to others, like schools. However, landlords and employers can go online, enter the application number, and they will be issued with a certificate that will be valid for six months. 

Landlords and employers are under really severe legal obligations to check immigration statuses of everyone they employ or rent to, because if they don't, then they can get fined up to £20,000 per person. So, the certificate that would be issued by the Home Office will be a legal defence should the Home Office come and check. 

What if you missed the deadline to apply to the EU Settlement Scheme?

TV: So the other question is, what about the people who missed the June application deadline?

AV: There is good news. Actually, there are two pieces of good news. One of them is that the Home Office has released an update to their caseworker guidance for the Settlement Scheme, which added 10-15 pages setting out the reasonable grounds for someone to miss the deadline.

The other good news is that actually, the Settlement Scheme is not completely closed. It's still open for some first applications and it is open for second applications. What I mean is by second applications is that if someone has pre-settled status, and they have been in the UK for five years, and they haven't been outside of the UK for more than 180 days in the five years leading up to their second settlement application, they can and they should apply for their settled status.

MP: So what you’re saying is someone who initially got pre-settled status in, say, 2019 and now they have completed five years, they can then switch over to the settled status under the same scheme?

AV: Yes, the deadline was for first applications and this is going to be their second application. 

MP: We touched on late applications and we have seen a lot of people asking what is a reasonable ground? Do you have some examples of reasonable grounds?

Children are not expected to make their applications on their own, even though, under the relevant rules, children are defined as being under 21 years old.

AV: I mean it’s 15 pages long and things covered are sort of if someone is wounded or homeless around the deadline. The reasonable ground only had to have existed in the couple of months before the deadline up to the deadline. 

What's very important, and I think many people are probably affected by this, are children. So if children have been cared for by authorities, and the authority misses the deadline of the application, obviously, children are not expected to make their applications on their own, even though, under the relevant rules, children are defined as being under 21 years old. That’s important because it gives you a few more years than you would expect. 

So children, even if their parents missed the deadline, they didn't know, they were not aware of the legal obligation of having to apply, they can still apply and the fact that the child was under 21, before 30th of June, means they can make the application.

MP: So that's a reasonable ground.

AV: Just being a child, basically.

TV: So the parent would then not get status then, it's too late for the parent, but their children would.

AV: I mean, they wouldn’t be covered by this ground, specifically. But he or she may have another ground to argue.

MP: Any other reasonable grounds that an adult could use to apply? 

AV: Absolutely. For instance, there are some practical and or compassionate grounds, such as living overseas. So if you're an adult living overseas, thinking that, “Oh I have lived in the UK for X amount of years and I only left a couple of years back, I didn't know that I have to apply to maintain my UK immigration status”, you have a reasonable ground. 

Another one is if someone actually applied to the Home Office before or during the time when the Settlement Scheme opened, but for different documents, not on the Scheme, but on the previously existing EU law rules. 

TV: Like permanent residency?

MP: Or the residence card?

AV: Yeah, or family permit. If any of these would have been valid at the time of the late application, that will be accepted as a reasonable right.

So if I’d applied for permanent residency, I could now go ahead and apply?

MP: So if I’d applied for PR, I could now go ahead and apply?

AV:  Yeah, so you had to apply for a document certifying your permanent residence and I can't recall off the top of my head whether or not these documents have an expiry date, because even though permanent residency meant that you can stay in the UK permanently, and you no longer need to work or exercise your treaty rights by other means, the document itself might have an expiry date. 

Family members who are not from the EU, they might have a permanent or not permanent residence card that does for sure have an expiry date.

MP: Right, and if any of them are valid now, and you haven’t taken advantage of the scheme, that gives me a reasonable reason to go out and apply for a pre-settled or settled–

AV: Yeah,you basically have a reasonable ground to submit a late application, even for pre-settled status. 

TV: But it’s important to do it now, before the document expires. 

AV: Yes, I would say ASAP. Before the document expires. 

What if your non-EU family members still wish to join you in the UK?

TV:  So, on the subject of family members, that's for ones that have missed the deadline. But now what about family members of those who have pre-settled or settled status, who now want to come join their family in the UK? How does that work for them?

AV: Some of them can. That's the good news. The bit of bad news is that it’s only a certain category of these family members called “joining family members”.

MP: That’s quite apt.

AV: Yep. But it's a very restricted category. The criteria are sixfold. Firstly, if the EU national has pre-settled status, they need to be on course for settled status. Now, this takes me to how do you lose your pre-settled status? You can lose your pre-settled status if you get it and then you stay outside of the UK for two years or more continuously. Then it's gone, by operation of law. It's like it never existed. 

Also, the EU national – I mean, that's probably implied – but they had to be in the UK before 31 December 2020.

MP: Okay, so if I haven’t lost it, I am an EU national, residing in the UK. I have been here since last year, I’ve got my pre-settled status and I haven’t been anywhere because obviously a lot of people aren’t travelling because of the pandemic. Now,f I want to get my family to the UK over from, say, South Africa, could they come join me now?

AV: Some of them might be able to. Some of them would never have been able to, because only some of the family relationships were recognized by EU law, and then this recognition was adapted by the relevant authorities.

I think we can make a general statement that the scheme is actually taking care of children very well.

MP: So, would my wife and two children be joining family members now?

AV: They might be able to join you and get even pre-settled status on the scheme, provided the marriage or the family relationship existed before 31 December 2020. So, if you only married two months ago, then that’s not going to work, unless you lived together for three years proper to January 2020. 

Children should be able to join you even if they were born after 31 December 2020. I think we can make a general statement that the scheme is actually taking care of children very well. So, they’re actually  focusing on providing rights under this route for children. 

MP: Right. So, if I did marry my South African wife, say 10 years ago, I just happened to be an EU citizen who’s got pre-settled status now–

AV: Well, are you still together? 

MP: Yes, very much. 

AV: Okay, so this is another requirement. Your relationship has to be subsisting at the time of application. 

MP: Even if we’re married?  

AV: Yep, and also your wife shouldn't have been in the UK before as your family member. If they were, but more than five years have passed since, then they can still come under the joining family member category, provided all other criteria are met.

MP:  So, the scheme is very much still open for joining family members?

TV: It seems like it's kind of designed around keeping families, who are genuine families, together. But you're gonna have difficulty if your family is somehow different. Like if you've been in a long-distance relationship for most of your marriage or something like that, because you're gonna have difficulty in proving that you have a genuine family relationship.

AV: That is correct, you will have a hard time. Albeit, the new guidance is allowing evidence that wouldn't be accepted in relation to any other type of applications for visas such as statements from yourself to prove that you have been homeless. Your own statement normally doesn't count as evidence, but it could be used to prove that you have been homeless, therefore, you didn’t have the means to apply before and you're late. 

MP: So, if I was to come in as a family member, would I get the same leave as the EU person? So, coming back to my South African wife, will she get five years like I have, for example?

AV: First, she would need to apply for a family permit. If she doesn't have a family permit, under the scheme, then she wouldn't be able to apply for pre-settled status.

MP: So, she’d get a family permit, she’d come in, and then apply for the pre-settled status at that point and so would my children. Then they will get the settled status at the five-year point.

TV: Mishal, your UK wife’s going to be a bit worried with all this talk about your South African wife. 

MP: *laughs* I want to say, Mom, this is a fictional situation. 

Tips for travelling in and out of the UK as an EU national

TV: So, earlier, you mentioned travelling. Do you have any tips for travelling in and out of the UK now with the settled or pre-settled status?

AV: Well, yes. As I mentioned before, it is very, very important that all EU nationals keep the Home Office updated with regard to their passport numbers or ID numbers. Otherwise, they might run into some border problems, because the checks are automated, they put your passport or ID into the e-gate at the border and that should automatically bring up your immigration rights. But if you, in the meantime, renew your passport or ID and you didn't take the time to update your account, then the person at the border might say that, look, you don't have an immigration status in the UK. You might do, but he can’t see. 

MP: Basically, I don’t think you’ll be able to use the e-gate, you’ll probably be flagged up and have to go see a border official to clarify the situation, which becomes a delay. 

AV: Well, it can have very serious consequences. I’m not sure if you’ve read it in the papers. Even before the official deadline of 30 June, about 3,000 EU nationals were taken to immigration detention.

So, I think the moral of the story is you have to get your paperwork right.

Let’s forget about the Settlement Scheme for a second, what about those EU nationals who were not in the UK before 31 December 2020, had no status and had no claim on the Settlement Scheme? In theory, they should still be able to come to any of the ports of the UK and come in and be granted an automated six-month visit visa. That wouldn't even be stamping, it would just be on the records of the Home Office, that’s all. But if the border officer has the suspicion that… 

MP: That you won’t leave in six months... 

AV: Yeah. “Yeah I just don’t see it fits, why would they leave? They just told me they have a spouse in the UK or they are visiting their parents who are sick”. They do have the discretion to say, “I don't believe that you will leave the UK after six months and you have no other immigration status in the UK, therefore, I am not allowing you in and first they’d put you into detention and then– 

MP: Send them back. 

AV: Yeah.

MP: So, I think the moral of the story is you have to get your paperwork right.

AV: Yeah. So, EU nationals don’t have to apply, for instance, for a visit visa. But I think they are better off.

Qualifying British citizens bringing EU family to the UK

MP: Yeah, best to have the paperwork. So, are there any final deadlines that one needs to look out for? Because when I hear about Brexit, and I hear about the Settlement Scheme, I always see deadline,deadline, deadline, and I know one's just passed, but are there any other deadlines worth considering for those people in the UK or family members in the UK?

AV: For family members, believe it or not, there is no deadline. For family permits, however…  So, for instance, we haven’t talked about people called “qualifying British citizens”. They can bring joining family members into the UK, but these family members have to come in together with the qualifying British citizen until 29 March 2022.

TV: So, what makes someone a qualifying British citizen?

AV: Basically, they are defined under the now-expired EU law. The British citizen has to be working or exercising their treaty rights in an EU country. 

MP: Right, so that’s based on the Surinder Singh principle. For example, if I was a British citizen, but I’d always lived in France because I chose to...

You have to make your application under the Settlement Scheme for pre-settled status within three months of arriving in the country.

TV: You could come back to the UK and your family could join you? As long as they come with you to the UK before that deadline?

MP: Rather than join me under the UK immigration rules, they’ll be able to apply for permission to enter under the Settlement Scheme, or a new appendix to cover these guys. Which I know a lot of people can attest to being much more straightforward.

AV: And cheaper. I think this is also a gesture from the UK government to keep families together. It's basically a message to those British citizens who have been living and working abroad, that you can come home, and you can even bring in your family without being charged for their visas.

MP: Okay, so that deadline is March 2022?

AV: For the first visa, yes. Another requirement of a joining family member is you have to have a family permit, even if you are an EU national and you have to make your application under the Settlement Scheme for pre-settled status within three months of arriving in the country. Very, very important. If you have a visa inserted into your passport, get it stamped at the border. 

MP: Yeah, don’t use the e-gates.

AV: Don’t use the e-gates, even if you could, make sure that you go through the border officers.

MP: Right, to show that you’ve come in on this date so it can make your life easier down the line. 

TV: Really good tip. Any other deadlines you wanted to mention? 

Pre-settled status and family

AV: If you are granted pre-settled status (valid for five years), you must apply for your settled status, provided that you meet the residence criteria, before your pre-settled status expires. So, that is also a very tight deadline.

MP: But joining family members don’t have a deadline yet, which is quite crucial. 

AV: But if you think about it, who would have a married spouse and not live with them?

TV: And how would you prove your relationship is ongoing if you weren’t living together…

MP: In the same place, yeah. Absolutely. 

AV: There is one more tip. If you have pre-settled status, but you married your spouse who is from the EU or any other parts of the world outside of the UK, they can actually apply for a spouse visa, not under the EU Settlement Scheme, but under the normal spouse, even fiancé visa. 

TV: Which is useful if you weren’t married before the end of Brexit. That would be the best way to bring someone over. 

AV: And it’s even if you have pre-settled status, not only settled status, even then you can bring your new spouse. It will cost, especially getting to the indefinite leave stage, up to £10,000 for the three applications at least. 

MP: I think a lot of questions for our listeners have been answered here. 

How Sable International can help

TV: You want to talk a little bit about the services that we offer? And what part of this we can help with. 

AV: We can assess whether your family members could still join you as joining family members – it’s better to get it checked, because it's complex. We could assess for late applications, we could even represent you for late applications, as long as the circumstances are reasonably straightforward and you meet the criteria set out by the guidance. The guidance itself is 225 pages…

TV: So, we read it so you don’t have to.  

AV: Most of it is in legalese, so you might want to call us. We can also represent first applications, second applications and nationality applications. The need might arise for an assessment first because, especially for EU nationals and their family members, the criteria for naturalisation is rather complex. 

MP: Just to summarise, pre-settled and settled status in terms of  late applications. Joining family members, qualifying British citizens and their family members.... More or less, just get on the phone and et's just have a chat. 

TV: Thank you so much for joining us. This has been fascinating.

Find out if you have a British citizenship claim by filling in our free online British Citizenship Assessment.  

Get in touch with our citizenship team on +44 (0) 20 7759 7581 or at citizenship@sableinternational.com.

 

Catch up on the rest of the series

  1. How Mishal gained his UK citizenship
  2. The EU Settlement Scheme
  3. Routes to UK citizenship for Americans
  4. Complex UK nationality (with Philip Gamble)

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