It’s not too late to apply for EU settled status in Scotland

31 October 2022

BY June last year, around one quarter of a million European Union (EU) citizens had applied for settled status in Scotland under the EU Settlement Scheme (EUSS). 

By Mike Dailly, Govan Law Centre

Over 141,000 applicants were granted "settled status" - giving a permanent right to reside - while over 100,000 were granted "pre-settled status" - a right to reside that can become permanent upon five years continuous residence in the UK. 

No one knew the actual number of EU citizens in Scotland - or indeed those from the European Economic Area (EEA), which includes EU countries plus Iceland, Liechtenstein and Norway. The overall official number was most likely a significant under-estimate. 

The EUSS had an expiry date for applications by 30 June 2021 for those who were resident in the UK by 31 December 2020. 

However, the UK Home Office then issued guidance for late applications, including for those who didn't apply by 30 June 2021 and for certain groups of people who became resident in the UK after the original cut-off date.

The reason this is so important is because without a late application to EUSS an EEA citizen may be unable to exercise preserved rights to work in the UK and obtain access to essential public services. This can lead to severe destitution for families who experience a life crisis and then seek public assistance.

Last week, Govan Law Centre (GLC) assisted an EEA family who had been doing fine until they had to leave their accommodation. Many EU citizens in Scotland are on the UK national minimum wage of £9.50 per hour. The cost of living crisis has exacerbated private sector rents which are unaffordable for most low paid workers. 

The clients had been referred to GLC by Positive Action in Housing's Migrant Project. GLC raised an urgent petition for judicial review in the Court of Session challenging the local authority's refusal to provide homelessness assistance. 

The council refused help as they considered the family subject to immigration control under section 119 of the Immigration and Asylum Act 1999. 

Yet, the family had applied late to EUSS and had an Home Office "Certificate of Application". This is the formal document the Home Office issue while they examine a settlement scheme application. 

It advises while an EUSS application is pending a person can: "live in the UK; work-once your employer has verified your certificate of application with the Home Office; study; use the National Health Service in a similar way to permanent UK residents; access public funds such as benefits and pensions, if you are eligible for them; and access a current account with a bank or building society in the UK".

The law here is a legal maze and isn't easy to navigate even for lawyers. As far as I can work out a person with pre-settled status - including in my opinion an active application - can continue to use their free movement rights to qualify for housing or homelessness services. 

This is because such rights are saved in law under a Brexit Statutory Instrument (SI 2020/1309) for up five years after 30 June 2020, until she or he qualifies for EU settled status. 

So long as a person with a Certificate of Application for pre-settled status continues to meet the conditions for a right to reside - including being a jobseeker or worker - they are not "subject to immigration control" for section 119 of the 1999 Act and qualify for housing or homelessness services.

In the GLC case last week, the EU family were subsequently accommodated by the local authority to the great relief of all concerned. 

It's unfortunate the Scottish Government's 2019 statutory Code of Guidance on Homelessness is out of date on this area of law - its Chapter 12 on EEA citizens has simply been deleted. 

It contains a footnote to helpful guidance from the Convention of Scottish Local Authorities' (COSLA) guidance - but COSLA's chapter 15 EEA guidance says, "This section is currently under review". 

Clearly, any EEA national without EUSS status should consider whether they can make a late application. The Home Office give examples of grounds to do so: "where a parent has failed to apply on behalf of a child; where a person has or had a serious medical condition, which meant they were unable to apply; or where someone is a victim of modern slavery or is in an abusive relationship".

Other grounds include: "where someone is isolated, vulnerable or did not have the digital skills to access the application process; and where a person was unable to apply by the relevant deadline for compelling practical or compassionate reasons – including the pandemic". 

If in doubt, take advice from a law centre or firm of immigration solicitors.

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