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.