Updated guidance on Covid-related absences for EU citizens in the UK by Charlotte Rubin

On 15 December 2020, the Home Office published guidance covering COVID-19 related absences from the UK for EU/EEA citizens who have settled or pre-settled status under the EU Settlement Scheme (EUSS), or those who are eligible but have yet to apply. We wrote a post about it at the time, but this guidance has now been updated on 10 June 2021, with significant changes since the last version. This article reflects those changes.

The general rules of the EUSS are clear – for an applicant to be eligible for status, for them to remain in the UK lawfully, they will need to confirm and prove a period of continuous residence in the UK starting before 31 December 2020. Depending on how long that period of residence is, the applicant will be granted either settled or pre-settled status.

To obtain settled status, or indefinite leave to remain, the applicant has to have been continuously residing in the UK for five years. The five years need not be ongoing; applicants who are not currently living in the UK may apply based on their historic residency, as long as they have not been outside the UK for a continuous five-year period immediately after the five-year qualifying period of residence on which their application is based.

If a person has been in the UK for less than five years, they will receive pre-settled status, which they will need to maintain until they reach the five-year continuous residence threshold to qualify for settled status. Continuous residency is calculated on a rolling basis, not based on calendar years, meaning that the applicant must be living in the UK for more than six months out of every twelve-month period.

The general rules state that applicants are permitted one period of absence of more than six months (but which does not exceed 12 months) for an important reason such as study or serious illness without losing their pre-settled status. This period of absence must be explained and proven when the applicant submits their settled status application. If an applicant is absent from the UK for longer than six months (but under 12 months), and it is not for an important reason, the absence will break their continuous residence, and they will not be able to apply for settled status.

The new guidance specifies that applicants can “rely on any coronavirus related reason” as an important reason for absence. This includes where applicants have chosen to remain outside the UK because of the pandemic, e.g. to work remotely or to stay with family. It also includes being forced to remain outside the UK by travel restrictions, having the virus, caring responsibilities, etc.

This wide interpretation will come as a relief to many EU and EEA citizens. It means that if someone with pre-settled status spends, say, eight months of the pandemic outside the UK, this extended absence will not break their “continuous qualifying period,” and they may still apply for settled status as they originally planned.

When applicants with pre-settled apply to “upgrade” their status to settled status, they will have to prove the “good reason” for their absence. This may be through doctors notes or evidence of cancelled flights, but also simply writing a letter explaining why one chose to remain outside the UK because of the pandemic should suffice.

The guidance also deals with those who have two absences from the UK of more than six months each. Normally, this would break continuous residence, because Appendix EU only allows for a “single period” of absence to be excused by an “important reason”. The guidance, however, says that the Home Office will, in practice, not give you a hard time about a second period of absence of between 6-12 months if one of the two periods was due to COVID-19. Note that the time over 6 months during the second period of absence will not count towards the five years you need to qualify for settled status – but it will not break the five years either.

For absences of over 12 months, the COVID-19 pandemic may still serve as an excuse, but the requirements are stricter than for absences of 6 to 12 months long. If you were absent from the UK for more than 12 months, you will have to show that your “this extended absence is because coronavirus meant you were prevented from, or advised against, returning to the UK within 12 months and for a period thereafter.” This could be for many reasons, for example due to illness or quarantine with coronavirus, caring for a family member affected by COVID-19 outside of the UK, being prevented from traveling due to travel restrictions or travel disruption, etc. You will have to prove this with paperwork, so it is pertinent that you keep a record of events for evidence. Additionally, any period of absence longer than 12 months will not count towards the five years necessary to obtain settled status – that qualifying period will resume from the moment the applicant comes back to the UK.

If you need legal assistance with the EU Settlement Scheme, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.

Migrants and COVID-19 vaccinations by Charlotte Rubin

During the COVID-19 crisis, the government has announced changes and exceptions to the rules regarding healthcare access. All migrants can now access certain essential healthcare services free of charge and free of immigration checks. As such, non-UK residents in England can get free care with regards to COVID-19, irrespective of their immigration status. This includes free access to COVID-19 testing, treatment and vaccination for all overseas visitors to England, including non-residents and those living or staying in the UK without permission.

In early February, it was officially announced that COVID-19 vaccines would be made freely available to all adults in England, Scotland and Wales, regardless of their immigration status. Thus, all adults are eligible to get the vaccine, including those with no recourse to public funds (NRPF), those who are undocumented, those who are only in the UK short-term, those who have overstayed their visa, and those who normally have to pay for NHS treatment. This open policy is very different from the general approach to migrants, for whom certain public and health services are normally restricted.

Generally speaking, visa applicants for all visa types except visitors and those with indefinite leave to remain have to pay a fee known as the NHS surcharge in order to access National Health Services (NHS) services. In addition, some temporary migrants are also liable to be charged up to 150% of costs for secondary healthcare interventions.

The “no recourse to public funds” (NRPF) rule, then, is generally imposed on people with limited leave to enter or remain in the UK, prohibiting those such limited status from accessing certain defined public funds, such as Universal Credit or benefits. Those with outstanding asylum applications and undocumented residents are similarly barred from accessing public funds. If a person claims public funds despite not having the right status, that is considered a criminal offence, which may well carry consequences for their future immigration applications: any existing leave can be curtailed, and any future application refused as a consequence. In May 2020, this policy was found partially unlawful, as the High Court ruled that the government must make it easier for migrants to access the welfare system if they are about to become destitute.

Finally, the hostile environment policy deters migrants from accessing healthcare they are entitled to. Until 2018, the NHS functioned as a “gatekeeper” for the Home Office, sharing patient information to help the Home Office track down people thought to be violating immigration rules. This is no longer the case – data-sharing with Home Office immigration enforcement teams is now limited to cases of deportation for serious crimes only – but the culture of fear produced by such measures persists, not only preventing the NHS from fulfilling its function but also putting public health at risk.

Against the backdrop of the hostile environment, it is not surprising that migrant take up of the vaccine has been slow. Long-standing barriers to healthcare and lack of trust in public authorities lead many migrants to be afraid to access services even though they have the right to do so in this specific scenario. As such, most migrants who are entitled to free NHS care and still report feeling afraid of the repercussions of actually accessing the service. Among migrants who do have a visa and are in the UK lawfully, 30% still reported being fearful of seeking healthcare. For undocumented migrants, the situation is even more dire, as their data may be passed from NHS trusts to the Home Office, which can result in them being targeted by immigration enforcement. Such reluctance to get vaccinated could make a significant dent in vaccination totals, as an estimated 1.2 million people live in the UK without official documentation, and the real number is likely to be higher.

Migrants Right groups including the Refugee Council and the Joint Council for the Welfare of Immigrants (JCWI) have warned that many could still be left unvaccinated unless concrete action is taken to roll back aggressive policies such as data-sharing, NRPF and NHS surcharges as part of the hostile environment. In order to raise awareness and pressure government into making changes, the JCWI campaign to protect migrant rights during the COVID-19 pandemic has a list of resources and action points for those wanting to help.

Which EU documents can I use after Brexit? by Charlotte Rubin

The United Kingdom (UK) officially left the European Union (EU) on 31 January 2020, and the post-Brexit transition period officially ended on 31 December 2020. Yet, EU law and free movement rules have not completely stopped applying yet. Until 30 June 2021, the UK is in a “grace period” during which EU citizens still enjoy certain rights guaranteed if they moved here before Brexit or before the end of the transition period. Old EU documents will officially no longer be valid after the grace period ends, a date which is now less than a month away, as they are replaced by new rules and new residence documents.

As such, UK residence cards and derivative residence cards (for family members, for example) will expire on 30 June 2021, at the end of the grace period. These residence cards were issued under the EEA Regulations 2016, which guaranteed that citizens of European Economic Area (EEA) countries and their family members who had been living in the UK for at least five years could apply for permanent residence. Getting a permanent residence card was not an obligation for EEA citizens, but a lot of them decided to do so to have a form of physical evidence of their UK residence. For non-EEA family members, the residence cards and derivative residence were more vital, as they were proof of their right to live and work in the UK. Such non-EEA family members were eligible for resident cards if they were living in the UK for less than five years as well.

The EEA Regulations stop applying when the grace period ends, on 30 June 2021. After this date, the documents issued under those Regulations will no longer be valid, even if they are not past their expiry date. Holders of such status will essentially be unlawful residents at that stage. To avoid this predicament, the old permanent residency documents must be replaced by a new residency status for EU/EEA citizens in the UK, namely either pre-settled or settled status under the EU Settlement Scheme.

Under the Scheme, those who already have a permanent residence document can essentially exchange it for settled status. Other residence card and derivative residence card holders will also be able to apply for settled status if they have been living in the UK for at least five years, and for pre-settled status if they have not yet reached five years’ residence. For those without permanent residence cards, the same rules apply – they can apply for settled status if they prove they have been in the UK for five consecutive years, and for pre-settled status if they have been in the country for less than that. The deadline to apply for the EU Settlement Scheme is – you guessed it – on 30 June 2021. All EU citizens resident in the UK are expected to apply for status by then should they want to remain in the UK legally. After that date, they will be unlawful residents and will have to make a late application should they still wish to stay, with no guarantees as to the outcome.

For traveling, the deadlines are different and unrelated to the grace period. EU ID cards remain valid documents for all EU citizens to use when crossing the UK border until 1 October 2021. After that, only those with status under the EU Settlement Scheme, frontier workers, Healthcare Visitors on S2 visas and Swiss Service Providers will be able to use their ID cards as a valid travel document. Those people will be able to travel in and out of the UK using their EU ID cards until at least 31 December 2025, whilst all others will need to show a passport valid for the whole time of their stay in the UK. The exception is Irish citizens, who can continue to enter and live in the UK indefinitely.

When the grace period ends on 30 June 2021, EU citizens should be prepared for the full applicability of the immigration rules, and have swapped their old residency documents for settled status. As for traveling, they get a slightly longer time period to catch up. If you need legal assistance making any of these applications, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.

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