Lengthy absences from the UK can put EU settled status at risk: understanding the immigration rules

For most people, the EU Settlement Scheme has largely lived up to its government billing as generous and straightforward, but confusion over permitted absences is likely to cause some European residents trouble down the line.

People with pre-settled status, in particular, need to be aware of the absence rules. If they have been outside the UK for more than six months in any 12-month period, they will now only be able to upgrade to settled status if they returned to the UK before 31 December 2020.  

People who already have settled status, or have clocked up the necessary five years and intend to apply before 30 June 2021, are not affected by this issue. Settled status only lapses if the person has been out of the UK for five years. What we’re talking about in this article is the risks for people who only have pre-settled status.

Absences and the EU Settlement Scheme

The starting point is that EU citizens and their family members will qualify for settled status after completing “a continuous qualifying period of five years of residence” in the UK. Those living in the UK for less than five years qualify for pre-settled status instead, and can upgrade to settled status once they reach five years.

A “continuous qualifying period” is defined in Appendix EU of the Immigration Rules (the domestic legal source of the Settlement Scheme) as being a period of residence that began before 11pm on 31 December 2020 and which has not been broken by one of the following:

1. Absence(s) from the UK exceeding a total of six months in any 12-month period, subject to some exceptions discussed below
2. A prison sentence
3. A deportation, exclusion or removal decision or order (in very general terms)

Exceptions to the six-month rule

There is some allowance for periods longer than six months in narrowly defined circumstances. These include periods of absence for any length of time on 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”.

In addition, the Immigration Rules currently say that applicants are permitted “a single period of absence” of up to 12 months which is “for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting”. These are examples only. This means other situations may also qualify as an “important reason”: for example, caring for a terminally ill parent.

A very welcome recent development is a change to the guidance on absences arising from COVID-19 specifically. The key takeway points are as follows:

• Any coronavirus reason that has kept you outside the country for a period of up to 12 months will count as an “important reason”, including simply a preference to work remotely or be with family during the pandemic.
• Two periods of absence exceeding six months are allowed if one of these was for a “coronavirus related reason”. Time over six months on the second occasion won’t count towards the five years needed to qualify for settled status, though.
• A single absence exceeding 12 months is allowed if you were “prevented from or advised against” returning to the UK, for example due to travel disruption or illness. Simple preference won’t be enough in this case, and the time above 12 months won’t count towards the five years needed for settled status.

What happens if I’ve exceeded or am going to exceed the limit?  

An absence of more than six months that doesn’t fall within one of the exceptions will break a person’s “continuous qualifying period”. The consequences for this are different depending on whether they returned to the UK before 31 December 2020, or after that date.

In neither scenario does the person’s pre-settled status itself come to an end. In fact, pre-settled status only lapses through two years of absence from the UK. The issue is the right to upgrade to settled status. That right is very important, though, and the two-year allowance is a bit of a red herring. Anyone who wishes to reach settled status should ensure that they are not out of the UK for more than six months in any 12-month period — rather than thinking they are safe if absences are below two years.

Applicants who broke the continuity of their residence but returned before 31 December 2020

Someone who left the UK for more than six months and broke their continuous residence but was back in the UK before 31 December 2020 should be able to apply for an extension of their pre-settled status. This will allow them to clock up five years’ continuous residence and so qualify for settled status.

Previously, it wasn’t entirely clear whether extending pre-settled status in this way would be allowed, but the Home Office has since confirmed to the authors that renewing pre-settled status is in fact possible for those back in the UK in time. Such applications can be made after the normal pre-settled status deadline of 30 June 2021; they just need to be made before your existing pre-settled status expires.     

Applicants who break the continuity of their residence and return after 31 December 2020

The option to extend/renew pre-settled status is not available to people who return to the UK after the end of the transition period. 

If someone with pre-settled status exceeds the permitted absences and returns to the UK after 31 December 2020, they will be unable to restart the settled status clock at all. Their permission to be in the UK will end on the date their pre-settled status expires. They will need to get permission to remain under the normal UK visa system, or leave the country.

Possible sources of confusion 

The Settlement Scheme is awash with various time periods that applicants need to consider, so to sum up:

1. EU citizens and their family members qualify for settled status after a “continuous qualifying period” of five years’ UK residence. 
2. A “continuous qualifying period” is broken by absence(s) of more than six months in any rolling 12-month period (unless that absence falls within one of the above exceptions).
3. Pre-settled status lasts for five years max. If a holder of pre-settled status broke their continuous residence but returned to the UK before 31 December 2020, they must apply for a new grant of pre-settled status to allow them to complete the “continuous qualifying period” of five years required for settled status.
4. Pre-settled status is only lost through two years of absence from the UK, but this is a red herring, for the reasons explained above.
5. The right to upgrade from pre-settled status to settled status is lost if the continuous qualifying period is broken and the person returns to the UK after 31 December 2020.
6. Once someone already has settled status, they can spend up to five years outside the UK without losing it.

All in all, absences may not be fatal to a settlement application or a person’s right to stay in the UK long term, but they certainly need to be approached carefully with a full understanding of the risks involved.