Navigating the Post-Brexit Immigration Landscape: Regaining UK Residence Status for Europeans

Over eight years have passed since the UK’s historic referendum on its membership in the European Union, yet the ramifications of Brexit continue to reverberate throughout the nation, particularly within its immigration system. The introduction of the European Union Settlement Scheme (EUSS) was a pivotal moment for many European nationals residing in the UK, allowing them to secure their status post-Brexit. However, as the UK government tightens its immigration policies, the path for late applicants seeking to regain their residence status is becoming increasingly complex. This article explores the options available for Europeans who previously lived in the UK but are currently residing elsewhere.

Settled Status Based on Historic Residence

For EEA (European Economic Area) or Swiss nationals who once called the UK home, there remains a glimmer of hope. If you lived in the UK for a continuous period of five years prior to Brexit, you may still be eligible to apply for Settled Status under the EUSS, even if you are currently living outside the UK.

To qualify for Settled Status, you must demonstrate that your residence in the UK was continuous for five years. This means that during that five-year period, you were not absent from the UK for more than six months in any rolling 12-month period. Additionally, you must show that you have returned to the UK at least once every five years since your period of residence ended, even if it was just for a brief visit.

The Deadline for the EUSS

The deadline for applications to the EUSS was June 30, 2021. At first glance, this may seem like a definitive cutoff, but there is still a possibility for late applications. If you can present compelling reasons to the Home Office for your delay in applying, you may still be able to secure your status.

Understanding Reasonable Grounds for Late Applications

The Home Office has established guidelines for what constitutes "reasonable grounds" for submitting a late EUSS application. According to the Home Office caseworker guidance, individuals who are eligible for status under the EUSS can make a late application if they can convincingly explain the reasons for their delay.

While the guidance does not explicitly address those living outside the UK, it does acknowledge that individuals may have been unaware of the application requirements, particularly if they were not residing in the UK during the scheme’s implementation. The Home Office has conducted extensive outreach to inform residents of the EUSS, but this may not have reached those living abroad.

If you have a clean immigration history and have traveled in and out of the UK since June 30, 2021, without being informed about the EUSS by Border Force officials, you may have a strong case for a late application. The Home Office is directed to consider any evidence that supports your claim of being unaware of the need to apply.

The Process Following a Late EUSS Application

For applications submitted after August 2023, the Home Office will first assess whether the grounds for a late application are reasonable before treating it as a valid application. If the Home Office determines that the grounds are not reasonable, the application will be rejected rather than refused, meaning the applicant will not have the right to appeal the decision.

Given the Home Office’s cautious approach to late applications, it is advisable to seek specialist legal advice when preparing your application. While there have been successful instances of overturning previous rejections, presenting a robust application from the outset is crucial.

Time is of the Essence

As the UK government aims to limit new entrants to the EUSS, it is expected that the requirements for late applications will become even stricter. Therefore, it is imperative to act swiftly if you believe you qualify for Settled Status based on your previous residence in the UK. The sooner you submit your application, the better your chances of success.

Conclusion

The landscape of UK immigration continues to evolve in the wake of Brexit, and for many Europeans who once resided in the UK, the path to regaining their status is fraught with challenges. However, understanding the nuances of the EUSS and the criteria for late applications can provide a lifeline for those seeking to return. As always, it is essential to seek tailored legal advice to navigate this complex terrain effectively.

About the Authors

Adam Hoefel
Senior Counsel
Adam has over 15 years of experience advising on all aspects of the UK immigration system, representing individuals in various visa and permission to stay applications, and advising businesses on their immigration strategy. Learn more about Adam.

Tom Hardwick
Senior Associate
Tom is an immigration solicitor with expertise in UK and EEA immigration law, asylum, and British nationality law. He has a proven track record of employing creative solutions to achieve the best outcomes for his clients. Learn more about Tom.

This publication serves as a general summary of the law and should not replace legal advice tailored to your specific circumstances.