Those that have lived here for less than five years can achieve Pre-Settled Status and after five years’ residence apply for Settled Status. Those with Pre-Settled Status can leave the UK for up to two years and still return to resume that status, however, if there is an absence of more than six months accumulatively in any 12-month period, residence is deemed to have been broken, and this then removes the possibility of applying for Settled Status.
We have had a number of enquiries this year concerning EU citizens who already hold Pre-Settled Status but since being granted this, have spent a considerable amount of time outside the UK due to the pandemic and are concerned that this will affect their right to apply for Settled Status in due course. This article therefore looks as the issues which may affect their options and possible solutions.
We are aware that during 2020 many EU nationals travelled and found themselves stuck outside the UK due to COVID-19 travel restrictions, or even made a deliberate choice to go and work from abroad. They are now concerned that they have spent more than 180 days outside the UK and that this will affect their right to remain permanently. The UKVI has issued some guidance on COVID-related absences:
“If an applicant’s absence from the UK is not out of choice, but directly related to the COVID-19 pandemic, then we strongly advise that, when making their application for Settled Status (in due course), they provide all relevant evidence, clearly stating why they were unable to return to the UK.
They could provide, for example, the reason for their travel/absence, or any airline, travel agency, Public Health England, their embassy/consulate, as well as the Foreign and Commonwealth Office correspondence on the current travel disruptions due to the coronavirus (COVID-19) pandemic.
Evidence of any regular communications that they may have had with the airline, demonstrating that they are unable to return to the UK on a pre-booked return flight date, for example, could also be provided, as could proof of any future necessary arrangements they may have made as a consequence of this, and so on.”
This makes it clear that it must have been impossible for the individual to return to the UK. Where there is any element of choice, your application for Settled Status will be refused if you have spent more than 180 days outside the UK.
We have been recommending that individuals who have found themselves in this situation should apply for a further grant of Pre-Settled Status to ensure that they can achieve a full five years of continuous residence. We have recommended that this application is made before 30 June 2021. However, a new version of Appendix EU in the Immigration Rules appears to give more flexibility to the timing of a second application. A careful reading of the rules suggests that those who had left the UK, but returned before the end of the transition period at the end of December 2020 will be able to apply for an extension of Pre-Settled Status as late as 2024. This would apply so long as someone came back before the end of the transition period, and has been continuously resident since then, allowing them to extend their stay in this way.
Our recommendation remains to apply for Pre-Settled Status as soon as possible if there is a concern that excess absences may affect continuing residence. In particular anyone whose absence means they were outside the UK at the end of 2020, should make sure they get back and submit their second application for Pre-Settled status before 30 June 2021.
Home Office guidance remains that when applying for Settled Status absences of over 12 months will not be acceptable in any case.
These articles are from the February 2021 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 further information please contact Clare Hedges or another member of Birketts' 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 February 2021.