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How does absence from the UK work under the EU settlement scheme?

Absences from the United Kingdom — time spent outside the UK, basically — can have an impact on whether a person qualifies for full settled status under the EU settlement scheme. If you spend too long outside the country, you may lose your eligibility for settled status. This rule has particular importance given how many EU citizens spent time outside the UK during the pandemic, so it is worth making sure you understand the rules and how they work.

The EU Settlement Scheme opened in August 2018, allowing EU citizens living in the UK before Brexit, as well as their family members, to continue living and working here without losing their rights. The deadline to apply to the Scheme was 30 June 2021 – just over two years ago. However, late applications are permitted. Since 1 July 2021, the Home Office has continued to accept applications from those who have “reasonable grounds” for not applying sooner (see our explainer on how to do so: Late applications to the EU Settlement Scheme).

As more time passes, less people will fall under those reasonable grounds. Increasingly, the settlement scheme will become relevant mainly to eligible family members of EU citizens living in the UK (who can apply at any point with no deadline) and those who have already obtained pre-settled status but are now looking to switch to settled status. 

The main difference between pre-settled and settled status is that settled status simplifies proving the settled status holder’s permanent residence and their rights to access benefits. In order to qualify for settled status, an applicant has to abide by certain residency rules. In order to then keep their settled status, applicants also have to maintain a certain contact and presence in the UK, but the rules are less cumbersome. In this article, I’ll go on to explain those rules relating to absences and residency in the UK in the context of the EUSS.

Obtaining settled status

The Home Office recently announced that applications to upgrade from pre-settled status (time limited residence) to full settled status (permanent residence) will no longer need to be made. Following a court challenge, the Home Office will in future automatically either extend pre-settled status or upgrade it to settled status without the person concerned needing to apply at all.

Since it has now been over two years since the cut-off for residency (30 December 2020), an increasingly large number of cases the Home Office considers under the EUSS will now be of people who initially received a grant of pre-settled status, who have now completed their continuous qualifying period, and therefore want to switch to settled status. What will they have to show in order to obtain settled status?

To qualify for settled status under the EU Settlement Scheme, an applicant has to show two things. Firstly, that they lived in the UK prior to 30 December 2020 (unless, as mentioned above, they are a joining family member). Secondly, that they have spent 5 consecutive years continuously resident in the UK. These five years are known as the “continuous qualifying period.” 

As a general rule, to be considered a resident, you must spend at least 6 months out of every 12 month period in the UK, during your five year continuous qualifying period. There are limited exceptions to the 6-month in 12 month residence rule, where an absence of over 6 months will not disqualify you from obtaining settled status. 

Essentially, you can be absent up to 12 months and maintain your continuous residence if you have an “important reason.”  An important reason is not defined in the guidance, but examples include study abroad, work abroad, vocational training, and a number of health-related reasons. The applicant has to provide evidence of this important reason, for example, evidence of the study abroad, a letter from your employer confirming the overseas posting, employment contracts or evidence from medical professionals.

COVID and the pandemic

The COVID-19 pandemic led to a lot of geographic and border-related chaos. A lot of people got stuck abroad or chose to be outside the UK for an extended period of time.

The Home Office has amended the general rules regarding continuous residence to reflect these unpredictable events. Guidance now states that absences of up to 12 months due to COVID-19 will not break continuous residence. The applicant will have to explain and provide evidence of how the absence is related to COVID-19, though. For example, if they were unable to travel back to the UK due to for practical reasons such as border closures, embassy delays, flight cancellations, or having to comply with COVID-19 rules, you will have to upload evidence of these hindrances. Similarly, if you were unable to travel back to the UK because you were sick or you had a family member to care for abroad during the COVID-19 pandemic, you will have to upload evidence of such things.

There are other situations which allow for an absence of more than six months but less than 12 due to COVID-19; the examples provided are non-exhaustive. The most important thing is that the applicant explains to the Home Office when they apply what happened and why they stayed abroad. The absence should then not break their continuous residence, and they will be eligible for settled status.

For absences exceeding 12 months due of COVID-19, the rules are a little stricter. Such absences may be permitted by the Home Office in situations where coronavirus measures prevented the applicant from returning to the UK within 12 months and for a period thereafter, or they were advised against doing so. The applicant must explain in their application the reason why COVID-19 prevented them from returning to the UK and provide evidence where available.

If the Home Office accepts these reasons, continuous residence will not be broken. However, any time spent outside the UK beyond 12 months does not count towards the five-year qualifying period. Effectively, your continuous residence clock will have been “paused” at 12 months abroad, and re-starts once you return to the UK. 

Absences once you have settled status

Once you have spent five years being continuously resident in the UK, you will have fulfilled your continuous qualifying period and be eligible to apply for settled status. As we discussed in a previous blog post on returning residents, you can then spend up to five years in a row outside the UK without losing your status. Swiss nationals who can spend up to four years outside the UK. You must return to the UK within that time period, or else you will lose your permanent residence and settled status if you have it.

The Withdrawal Agreement between the EU and the UK does not explicitly state what it means to “return to the UK” within five years. But the Court of Justice of the EU (CJEU) decided in January 2022 that people who hold long-term permanent residence (such as settled status) can maintain this status if they return to the host state within the specified time frame, even if they return only for a short period of time. The case did not specifically address the EU Settlement Scheme, and CJEU judgments are not directly enforceable in the UK, but the UK does have to give CJEU decisions “due regard” under the Withdrawal Agreement. In other words, unless the UK has a good reason not to follow the CJEU decision, returning to the UK for a short visit can be enough to reset the clock on your five-year absence.

If you want to obtain settled status, you have to make a separate application for settled status to the Home Office. A grant of settled status is the easiest way to prove that you have fulfilled your five-year continuous qualifying period; so it is a good idea to apply as soon as you can.

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Charlotte Rubin

Charlotte Rubin (@rubinwrites) is a writer and advisor at Seraphus, an expert immigration law firm and partner of Free Movement. She previously studied international human rights law, and worked to help people in immigration detention. She writes about identity, migration, language, law, culture, and the intersections between all of the above.