Excess absences remain a real risk for holders of pre-settled status, with recent changes announced to the EU Settlement Scheme likely to cause more confusion.

The changes mean that some people with pre-settled status may see their status automatically upgraded to settled status by the Home Office, while others may have their pre-settled status extended for another five years, instead of two years as previously.

However, these developments do not change the government’s position on absences unfortunately. The automatic extensions are intended to allow the government to assess more fully whether someone will qualify for settled status. If they don’t qualify, that pre-settled status may well be cancelled or cut short.

In other words, people who would not have qualified for settled status previously due to excess absences will not now be able to qualify for settled status in the future by simply starting a “new” period of residence under the extension. 

It remains the case that people who have been outside the UK for more than six months in any 12-month period, will – barring exceptions discussed below – only qualify for a settled status upgrade where those absences occurred before 2021.

This article will look at how absences apply to people holding pre-settled status where they were living in the UK by 31 December 2020. It does not apply to family members granted status under the EU Settlement Scheme since then.

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 will be upgraded to settled status once the Home Office is satisfied they have completed that period of 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)

How to calculate absences

Firstly, it’s worth noting that the six-month cap is not limited to a single lengthy period outside the UK. It also applies to multiple trips totalling six months together. 

Secondly, the rules refer to absence(s) during “any 12-month period”. In other words, the Home Office will not just be looking at travel during a calendar year. It instead considers a “rolling” period of 12 months, which “resets” with every trip. This is not how the EU sees it, and it’s possible that the Home Office will have to change its position on this in future. But that might take a court case, and in the meantime applicants who travel frequently will need to keep a very close eye on their travel. 

Thirdly, such absences are only relevant to the “qualifying period” relied upon. Once the five-year qualifying period is complete and settled status is obtained, an applicant can spend up to five years outside the UK without losing that status.

The above seems clear. What is less straightforward is how exactly such absences are calculated. It doesn’t take a lawyer to figure out that months are different lengths — so when Appendix EU sets a six-month limit on absences, how many days is that? 

What constitutes a “month” is not defined anywhere in Appendix EU, the immigration rules overall or in the pre-Brexit provisions for EU citizens, the Immigration (European Economic Area) Regulations 2016. 

But other parts of the immigration system may provide a clue. The Home Office’s general position across other parts of the rules is that 6 months amounts to 180 days, i.e. 30 calendar days per month. This is of course slightly less than half a year, which would be 182.5 days exactly. On the other hand, the EU has previously taken the view that 6 months means half a year.

I’d advise anyone who’s not yet reached 180 days to play it safe and avoid exceeding that limit. But I can’t really imagine an application failing at 182 days, subject to any further clarification on this point. 

When counting days, remember that only a whole day’s absence from the UK will count. So if you leave the UK on 2 March and return on 3 March, this won’t count as an absence. If you return on 4 March instead, it would be one day’s absence only. 

Finally, it’s worth noting that at present there’s no need to actually list the exact dates of travel if making an application under the Settlement Scheme. The applicant simply needs to self-certify they’ve resided continuously in the UK.

This suggests a more relaxed approach to absences than the Home Office adopts in other types of settlement. That said, the Home Office has expressly said it will use UK border data to check a candidate’s travel, meaning that honesty is always the best policy. 

Exceptions to the six-month rule

There is some allowance for periods longer than six months in narrowly defined circumstances. According to the immigration rules, exceptions will be made in the following situations:

1. 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”.
2. 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, or because of COVID-19)”. If an absence can be chalked up to one of these categories, it will make life easier. Nevertheless, they are intended as examples only. This means other situations may also qualify as an “important reason”: for example, caring for a terminally ill parent. The government’s guidance on COVID-19 reasons, discussed here, makes clear that coronavirus-related reasons cover a wide variety of situations, including simply a preference to work remotely or be supported by family during the pandemic.
3. A period of absence that was not intended to exceed 6 months and did so due to COVID-19, but which did not exceed 12 months.
4. An absence of more than 12 months, which started as an absence of 12 months for an “important reason” but exceeded 12 months because the person was “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.
5. 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.

What about people who travel frequently for work? I’m afraid I can’t see how this falls within one of the permitted exceptions as it’s repeat travel over several years rather than “a single period of absence”. There is simply no generic allowance for “compelling occupational reasons” or travel that is an “unavoidable consequence” of the applicant’s career (as permitted in naturalisation applications, for example). Some people who are frequently in and out of the UK for work may be eligible for a frontier worker permit instead, though.

Evidence of the reasons for the absence will of course be required in all cases. This could take the form of hospital records, an employer’s letter or university confirmation of a study abroad requirement, for example. If a “coronavirus related” preference kept you outside the UK, as discussed above, a personal letter explaining your reasons should be enough. However, if you do have other evidence, for example medical records, that should be included too.

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 above 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, which used to lapse after two years of absence, now only lapses through five years of absence from the UK. But the issue remains the right to upgrade to settled status. That right is very important, though, and the five-year allowance is a bit of a red herring, as is the Home Office’s decision to automatically extend some people’s pre-settled status. 

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 five (or 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 will still qualify for settled status, provided they do not break their continuous residence after that date.

The government’s automatic extension of pre-settled status, initially by two years and now by five years, is intended to benefit precisely this category of people. This extension will allow such people to clock up five years of continuous residence and so qualify for settled status at a later date.

This does not mean they need to wait until the expiry of their pre-settled status to apply however. They should do so as soon as they qualify on the basis of completing a five-year continuous period of residence.  

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

An extension of pre-settled status does not allow someone to build up a new five-year continuous residence period starting after 2020.

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 may be automatically extended. However, this does not mean they will subsequently qualify for settled status. The Home Office may also cancel or curtail pre-settled status where the person has had too many absences from the UK.

In such situations, the only option would be to get permission to remain under another part of the UK visa system – for example as a Skilled Worker – or leave the country.

Someone in this situation would have to try to rely on the exceptions discussed above to argue that their continuous qualifying period had not been interrupted by the lengthy absence.  Simply choosing to spend more than six months away for work is not enough. In our example, Sabine might have been able to link the first period of absence in 2020 to coronavirus and argue that she actually should have been granted settled status in May 2024, before the 2025 absence. If that was accepted, then the absence from January to August 2025 would no longer matter as she would already have been eligible for settled status. If that were not accepted, then it is likely she would struggle to show the 2025 absence was for a sufficiently important reason to justify the time outside the UK.

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. If a holder of pre-settled status broke their continuous residence but returned to the UK before 31 December 2020, pre-settled status is extendable. That will allow them to complete the “continuous qualifying period” of five years required for settled status.
4. The Home Office has been automatically extending pre-settled status by 2 years and will shortly start extending it for 5 years. However, this does not mean that people can start a new period of continuous residence beginning after 2020.
5. Pre-settled status is only lost through five years of absence from the UK, but this is a red herring, for the reasons explained above.
6. 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.
7. 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. 

This article was originally published in May 2020 and has been updated so that it is correct as of the new date of publication shown.

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