Employment and Immigration Update - Brexit meets COVID


21 December 2020

This article was updated on 21 December 2020.

We are aware that when the pandemic hit and most businesses moved to home working, a significant number of EU nationals chose to go and work from home in another EU country. In some cases they have been away from the UK for up to nine months.

Under the terms of the EU Settled Status Scheme, any absence of more than 6 months in total over a 12-month period, will break your residence.

If you already have pre-settled status, that will continue for the full five years. But when you come to apply for settled status you will find that you do not qualify because of your absence history. We have therefore been advising anyone in this position to ensure they return to the UK by 31 December 2020, in order to restart the clock on a new period of residence. A fresh application for pre-settled status can then be made before 30 June 2021, thereby effectively restarting the clock after the problematic absence. This will then protect your rights, so you can still apply for settled status in five years time.

If you have not applied to the EUSS at all, it is even more important that you return to the UK by 31 December 2020. Otherwise, even if you have spent some time in the UK before, you may find your absence leads to any application for pre-settled status being rejected.

Those who already spend over five years in the UK and who have settled status have more flexibility. In these cases you are allowed to be outside the UK for up to five years (four years if Swiss) without losing your status.

The EUSS does include one exception – a single absence of up to 12 months during the qualifying period may be overlooked if it is for exceptional reasons. However, any absence of more than 12 months will always end residence.

We have been waiting for a long time for the Home Office to publish guidance on whether it would accept the COVID-19 pandemic as an exceptional reason for absences in 2020. That guidance was published earlier this week in two slightly different forms:

Coronavirus (COVID-19): EU Settlement Scheme - guidance for applicants
Coronavirus (COVID-19): Immigration (European Economic Area) Regulations 2016 - guidance for applicants

The guidance is generous for students. If you were studying in the UK, but have changed to study outside the UK because of coronavirus, that absence of up to 12 months will be permitted.

But for everyone else, including workers, the guidance is actually even more restrictive than we had feared. 

Absences will be forgiven if they were due to you being ill with coronavirus or in quarantine. But the guidance says: “Self-isolating will only be considered an important reason for absence where you are, or were, under quarantine conditions", for example:

  • when ill with coronavirus yourself
  • sharing a house with someone ill with coronavirus
  • when required to self-isolate as a result of being, or being in contact with someone who is, in a vulnerable or high-risk category.

You must provide a supporting letter with your application outlining the details and the dates you were ill or were in quarantine.

The guidance says if you have more than one such absence, your qualifying period will be interrupted, even if you are prevented from returning to the UK because of coronavirus.

Any EU nationals who are currently working remotely from abroad and who expect to be outside the UK for more than 6 months in total over a 12-month period, should consider whether they can make an urgent trip back to the UK by 31 December 2020, to protect their rights.

If you feel unable to do so, it will be important to gather medical evidence now and bear in mind that a successful application in future will not be guaranteed. In cases where it is just a preference to remain outside the UK and not travel at this time of year, you should be prepared for the fact that your absence will not be considered to be for an exceptional reason.

In light of the recent COVID-19 developments, several EU countries are (understandably) imposing a travel ban on arrivals from the UK. However in many cases travel to the UK is still possible. We appreciate this may seem undesirable, but for EU nationals trying to secure their status in the UK under the EUSS there may still be options to get you here before the Brexit transition period ends at 11:00pm on 31 December 2020. Whilst one would hope that the UK Home Office will soften its stance on requirements to qualify for pre-settled and settled status, we would not count on it. If you are affected and find you cannot travel, make sure you are proactive and save evidence of this now, in case it is required in the future.

This article is from the December 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For more details regarding any of the matters covered in this update, please contact Janice Leggett in our Immigration Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2020.

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