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When Does a Permanent Residence Right Lose Its Permanence?

Published 12 April 2024

The EU Settlement Scheme (EUSS) in the UK has recently adopted a stricter approach towards holders of permanent residence documents, including ‘documents certifying permanent residence’ and ‘permanent residence cards’. This change is a deviation from previous practices and is causing significant issues for individuals attempting to apply to the EUSS.

Under the UK-EU Withdrawal Agreement, those with permanent residence documents were supposed to easily exchange them for new status under the EUSS. Although a deadline of 30 June 2021 was set for applications, the Agreement stipulated that late applications could be accepted under reasonable grounds.

Until 9 August 2023, the Home Office considered holding a valid permanent residence document as reasonable grounds for late applications. Consequently, applications during this period were generally approved without major issues. However, new guidance issued on 9 August 2023 removed this leniency, leading to numerous refusals of such applications.

Compounding the problem is a change in Immigration Rules, effective from the same date, which prevents appeals against decisions regarding the validity of late applications. This leaves affected individuals with limited options: convincing the EUSS decision-maker to reconsider or initiating judicial review proceedings.

This development impacts those who have not applied to the EUSS and possess a permanent residence document. Many such individuals, including non-EU family members of EU citizens, were unaware of the need to apply to the EUSS, mistakenly believing their documents guaranteed permanent UK residence. The government’s publicising efforts for the EUSS largely overlooked this group.

The distinction between permanent residence and indefinite leave, while legally significant, was not clear to most people. Many thought they had indefinite leave and thus did not need to apply to the EUSS. The assumption was further reinforced by the use of these documents for work and travel over the years.

The failure to apply to the EUSS stemmed from a lack of awareness, not negligence. This recent policy shift is causing considerable distress and could significantly impact the future of those affected in the UK, highlighting the need for strong legal intervention

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