Insights / 09-02-2023 / London

From late 2018, most EEA citizens and their family members have applied to the EU Settlement Scheme (EUSS) to retain their residency rights in the UK. The deadline for most cases was 30 June 2021, but the Home Office will accept late applications for those with a reasonable excuse. Most UK residents who did not apply in time were issued with residence documents under the EEA Regulations. These are no longer valid, but some holders are unaware. After all, these documents were confusingly endorsed with the words “permanent residence”, therefore, it would be logical to assume that your document would not need to be updated.

The EUSS requirements, as described in Appendix EU, were designed differently than other UK visa routes. Considering the sheer volume of applications expected in a relatively short period of time, UK Visas and Immigration (UKVI) offered a simplified process and ID verification via a telephone app. They would also check applicants’ National Insurance contributions and admit these as proof of residence in the UK.

This simple and generally accurate check offered results within seconds of entering the applicant’s information into the system, which normally led to quick approvals. This is proof that UKVI is able to cross-check applicants’ records from other government departments but still chooses not to for all other visa routes.

There was another distinctive feature in the scheme; Appendix EU rules require caseworkers to give at least one chance to the applicant to correct mistakes or documentary shortcomings before refusing a case. Whilst we have noticed an improvement in UKVI’s communication with applicants under other categories, additional requests are still at the caseworker’s discretion and applications can be refused, often without any prior warning.

In addition to this new approach, UKVI did set up specific helplines for applicants and advisors under the EU Settlement Scheme. Agents handling calls are often able to guide applicants on how to submit straightforward applications. Unfortunately, their advice is not binding and can be incorrect on many occasions where there are more complex aspects involved. Professional immigration advice is highly recommended for those whose circumstances don’t fully meet the criteria and require the caseworker to exercise flexibility.

Although the helpline is a good starting point, there is another downside: callers are not able to speak to decision makers. The lines are manned by agents who will make a note on the file. Emails from caseworkers requesting additional documents are generic and frequently poorly drafted, and sometimes the result of not having correctly reviewed the evidence already supplied, or misinterpreting their own guidance. It is next to impossible to discuss a case directly with the assessing officer, unless they proactively call. Applications can become protracted and sometimes end up being incorrectly refused.

When it comes to decision making and processing times, applications assessed on the basis of National Insurance contributions are generally approved quickly, but not always. We have also seen mistakes on decisions for those who have not been working in the UK based on an incorrect interpretation of the supporting documents, even after pointing the caseworker to the applicable rules and guidance. Another frequent error is for those who are relying on historical periods of residence, but the applicant is no longer living in the UK at that point. As long as the person has not been out of the UK for more than five consecutive years, and are able to prove it with compliant documentary evidence, they are eligible for settlement.

All refusals do attract a right of appeal and the option of lodging an Administrative Review; applicants still have options to rescue the situation at that stage.

If the application is refused and an administrative review is submitted, a new caseworker will reassess the application and make a fresh decision, even accepting new evidence in the process. Unfortunately, to date, we have not received the outcome of any reviews more than 15 months after submitting the initial ones, although applicants’ rights are protected while their case is under consideration. Exercising a right of appeal is another option, however this is not a fast process either. It is not recommended for those without professional assistance, and therefore will be the most expensive option, particularly for an oral hearing.

Despite the shortcomings of the Scheme, we would welcome a similar approach in other immigration categories, at least in terms of this relative flexibility and approachability. Whilst the EU Settlement Scheme is free, fees charged for all other visa routes are way above the real cost of processing an application. The general immigration practitioners’ view is that, as long as UKVI make a profit, they should treat applicants as valued clients, and offer better customer service. The Home Office will not provide any immigration advice outside the EU Settlement Scheme, other than publishing Immigration Rules and redacted caseworker guidance. These rules are often difficult to decipher even for judges, one of them famously describing them as “byzantine”. If something goes wrong, there is no easy way to get through to other departments outside the EU Settlement Scheme, and legal advisors have to rely on personal contacts, not available to the general public.

UKVI have proved that they are able to offer a higher degree of flexibility, better customer service and protection of citizens’ rights in the event of a refusal. Even if certain aspects of the Scheme can still be improved, we can only hope that this approach is extended to other categories to make the UK’s immigration system a fairer, less frustrating exercise for applicants and practitioners.

If you need advice on your upcoming application, have been refused, or wish to check whether you meet the criteria even after the deadline, please get in touch with us. We have a wealth of experience of complex applications under this Scheme and can assess your chances of success at a consultation.