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EU Settlement Scheme | Late Applications & Challenging a refusal
Significant changes to the Immigration Rules relating to the EU settlement scheme have been introduced. Key changes include a more stringent approach to late applications and the closure of the right of administrative review as a remedy.
Late Application for EEA Nationals In The UK
EEA Nationals who were in the UK prior to 31 December 2020 had to apply to the EU Settlement Scheme to continue to reside in the UK lawfully. The official deadline for most applicants to apply under the EUSS Scheme was the 30 June 2021. Applications made after this date were considered to be late applications.
Prior to the changes implemented on the 9th August 2023, the Home Office were lenient when assessing the reasons for a late application. In our experience, most applications were granted. In the event of a refusal, an applicant would have the remedy of administrative review or appeal at their disposal.
Since the 9th August 2023, the Home Office’s approach to late applications are far more restrictive. The requirement to make an application by the 30th June 2021 is now a ‘validity requirement’. The only caveat to this is if there were reasonable grounds for a delay. If the Home Office do not consider that the applicant has provided reasonable grounds for their delayed application, their application will be considered as invalid and the application will be rejected rather than refused which negates the ability to appeal or challenge the decision. Additionally, the applicant will not receive a Certificate of Application which is the document which allows them to show they are legally entitled to work in the United Kingdom.
Prospective applicants will therefore need to ensure that they prepare well-reasoned and verifiable evidenced applications which adhere to the new guidance.
For Applications Made On Or After The 9th August, The Home Office Guidance Suggests:
- if no information is given as to why there has been a delay, or the information that is given does not constitute reasonable grounds in line with the guidance, it can be immediately rejected.
- if information is given which does seem to constitute reasonable grounds, but no or insufficient evidence is provided, a caseworker should write to the applicant and give them 14 days to provide that evidence.
- if a caseworker has doubts about the authenticity of evidence, they can reject the application immediately.
Challenging A Refusal Decision
The Home Office has also announced changes to the Immigration Rules which removes the right of administrative review for EUSS applications which have been refused where applications were made on or after 5 October 2023.
However, there will still be a right of appeal and it is important if an application is refused that an applicant who wants to challenge the decision is duly challenged before the deadline.
Our Experience
Our lawyers have acted for clients in respect of complex EUSS matters, many of which have been refused in the past. Our Immigration Solicitors develop detailed case strategies to overcome points of refusal in applications. We are particularly experienced in securing positive determinations at the appeal phase of matters.
To discuss any of the points raised in this article, please contact Jayesh Jethwa or fill in the form below.
A Guide to Restrictive Covenants
Restrictive covenants are legal obligations imposed in contracts or deeds that limit the use of land or property in various ways. These covenants can affect a property’s use, and the rights of the parties involved. In addition, as they are registered on the title, and can therefore run indefinitely, they can also lead to some rather outdated and nonsensical scenarios, particularly in relation to older properties.
Matters which would have seemed completely innocuous over a hundred years ago could cause problems now. For newer properties, restrictive covenants can be designed to uphold a particular standard across a development for all residents and property owners.
What Is A Restrictive Covenant?
A restrictive covenant places certain limitations or restrictions on the use, development, or activities related to a piece of land or property. They are used to protect the interests of other property owners and/or developers.
One significant milestone in the development of restrictive covenants was the case of Tulk v. Moxhay 41 E.R. 1143 (22 December 1848). It is a landmark decision, not just in law but in the history of London, because if the Court had ruled differently, Leicester Square as we know it would not exist. Happily, (for movie premier lovers at least!) the Court recognised the enforceability of covenants that ran with the land.
The case established the principle that subsequent owners of land could be bound by restrictive covenants made by their predecessors, provided certain conditions were met.
What Makes A Restrictive Covenant Enforceable?
The following must be present for a restrictive covenant to be enforceable:
- The original parties involved must have intended the covenant to be binding and enforceable. This intention should be clear from the language used in the contract or deed.
- The covenant must relate to the land in question and significantly affect its use, value, or enjoyment.
- There must be privity of estate between the parties, which means that the covenant must “run with the land.” This ensures that subsequent owners are bound by the covenant.
- For a subsequent owner to be bound by a restrictive covenant, they must have had notice of the covenant’s existence. Notice can be actual, constructive, or imputed.
- Courts may refuse to enforce a restrictive covenant if it is found to be unreasonable or against public policy.
How Are Restrictive Covenants Applied To New Build Properties?
Restrictive covenants in new build developments often aim to maintain the aesthetics and uniformity of the development. They may include provisions that restrict property owners from making significant changes to the exterior of their homes, such as altering the facade, installing non-approved fencing, or painting the property in a way that deviates from a specified colour palette.
Property uses which are sometimes restricted in new build developments include activities such as running a business from the premises, converting the property into a multi-unit dwelling without permission, or using it for industry.
In addition, some covenants may require property owners to maintain their homes and gardens to a certain standard. This can include keeping gardens in good condition, repairing damage promptly, and maintaining the property’s overall cleanliness. Restrictions may also be placed on the construction of outbuildings, such as sheds or garages, to ensure they do not negatively impact neighbouring properties or the overall aesthetics of the development.
Will A Restrictive Covenant Affect My Sale?
When it comes to new build developments, it can be seen that restrictive covenants can be beneficial. The prohibition from changing the outside of the property, for example, ensures that an attractive environment together with uniformity is achieved whilst properties are being bought and sold.
More commonly in older properties, where the covenant is often decades old, if the covenant is considered onerous or has been breached inadvertently remedies are available.
- Indemnity Insurance: If the beneficiary of the covenant cannot be identified, obtaining indemnity insurance can provide protection for both the current owner and future buyers against potential enforcement of the covenant. This insurance covers the costs associated with dealing with the covenant.
- Negotiating a Release or Variation: If the beneficiary of the covenant is known, negotiations can be initiated to secure a release or variation of the covenant. This involves altering the covenant’s terms or removing it entirely.
- Lands Tribunal Challenge: If you believe that the restrictive covenant no longer serves a practical purpose and meets the criteria outlined in section 84 of the Law of Property Act 1925, you have the option to challenge it through the Lands Tribunal. If successful, this process can lead to the removal or modification of the covenant, simplifying the property’s sale.
During the sale process, it is crucial to collaborate closely with a solicitor well-versed in property law who can provide expert guidance, whether it involves obtaining indemnity insurance, negotiating with the beneficiary, or pursuing legal action in the Lands Tribunal to remove or modify the covenant.
How Are Restrictive Covenants Enforced?
In recent years, the Courts have been inclined to take a more flexible approach to restrictive covenants, particularly when considering their reasonableness. The test of reasonableness often involves weighing the competing interests of the parties involved, balancing the benefit gained by the party seeking enforcement against the detriment suffered by the party in breach. Overly, restrictive covenants can hinder economic development and impede progress. Consequently, the Courts may refuse to enforce covenants that are deemed unreasonable or contrary to public policy.
The ancient law of restrictive covenants must strike a balance between protecting property rights and facilitating development and progress. Developers and property owners should take expert legal advice from a Residential Property Law Solicitor if they have any concerns regarding implementing or breaching restrictive covenants.
To discuss any of the points raised in this article, please contact Meera Malde or fill in the form below.
Quastels Employees Speak Over 20 Languages
Breaking down language barriers, one case at a time.
London is a thriving city that attracts people from all over the world. With such a diverse mix of people, cultures, and languages, it’s no surprise that being multilingual in London is not only desirable but often essential.
At Quastels, our legal advisors can deliver legal advice in over 20 languages, ensuring that you can navigate the legal system with ease.
