Settled status is generally granted where an EU citizen (and potentially their family members) is able to show that they have completed a “continuous qualifying period of five years of residence in the UK”.
Individuals who have also historically lived lawfully in the UK for five years but have left the country may also be able to obtain settled status under the EU Settlement Scheme provided that that they have not been absent for five years or more, and that they have applied for it by June 30 2021.
EU citizens who do not meet the five year UK residence threshold are eligible for pre-settled status, subject to showing they were living in the UK prior to 31 December 2020. Pre-settled status allows them to stay in the UK for up to five years at which point they can then apply for settled status.
Whilst the rules may seem relatively straightforward, there are a number of pitfalls for the unwary, particularly for those who have pre-settled status and have been absent from the UK due to reasons including the Covid pandemic.
Absences
The grant of settled or pre-settled status can be lost as a result of leaving the UK in the following ways:
- Those with settled status will lose this entitlement following an absence of five years or more from the UK.
- Pre settled status lapses after an absence of two years from the UK.
As a reminder, only a whole day’s absence from the UK counts. So leaving the UK on one day and returning on the next would not count as an absence. There are exceptions to the rules regarding absences as set out below.
What is less known (and subject to the exceptions) is that absences from the UK totalling six months or more in any rolling 12 month period during the pre-settled status phase will immediately break UK residence continuity for the purpose of obtaining settled status if the individual returned to the UK after 31 December 2020. They will be unable to restart the settled status clock and their permission to stay in the UK will end when their pre settled status expires. In this situation, they will either have to leave or obtain a visa to remain in the UK.
If they broke residence continuity but returned to the UK before 31 December 2020 they can apply for an extension of their pre settled status by making a new pre-settled status application which relies on the return to the UK by 31 December 2020. Once you are granted this new pre-settled status, the clock for settled status will have reset.
The individual does not lose pre settled status in either scenario but the absences and the date of their return to the UK may affect the person’s ability to upgrade to settled status in the future.
Covid exception to absences
Many EU nationals returned to their home countries to stay with their families during the Covid pandemic. Is Covid a good enough excuse for a lengthy absence from the UK, and will it break the residence continuity rule for settled status?
Individuals are permitted a single absence from the UK which does not last more than 12 months “for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting”. Home Office guidance says that Covid-19 may qualify as an important reason for an absence of up to 12 months but only if the person is forced to remain outside of the UK due to travel restrictions, quarantine or Covid related health complications, or if they are required to study remotely as a student.
If a person decides to remain in their home country because they want to live with family members or because they fear the health risk is greater in the UK than in another country, the guidance says that such an absence will not amount to an important reason.
Self isolating may amount to an important reason for an absence where under quarantine rules, the person was:
- ill with coronavirus;
- sharing a house with someone with coronavirus; or
- required to self-isolate due to being in contact with someone who is in a vulnerable or high risk category.
Additional absences, which include a single absence of up to 12 months, will break the continuous qualifying period, even if one of the absences was due to Covid-19.
The Home Office is expected to come under fire if large numbers of EU nationals are prevented from upgrading to settled status in the future because they stayed out of the UK for more than six months because of the pandemic.
Other Exceptions
The Home Office permits absences of more than six months including:
- absences for compulsory military service;
- a Crown service posting (or as a partner or child accompanying such a person); or
- time spent working in the UK Marine area.
For further information and advice please contact our immigration team:
The material contained in this guide is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
© Miller Rosenfalck LLP, March 2021
