Lengthy absences from the UK can put EU settled status at risk

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 (or will be applying for pre-settled status by 30 June 2021).

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)

We are going to take a look at the absences issue, as this is the question I’m most often asked about in practice.

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. Similarly, if applicants are relying on a historic five-year qualifying period that was followed by a lengthy period of absence from the UK, they will retain the right to apply for settled status provided that absence lasted no more than five years. But it’s very important to note that qualifying applicants must apply for settled status by 30 June 2021 unless they already hold pre-settled status (in which case they have until that pre-settled status expires). 

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. For the purposes of long residence applications for indefinite leave to remain, Home Office guidance defines a month as “30 calendar days”. This means that six months equals 180 days. This is of course slightly less than half a year, which would be 182.5 days exactly. On the other hand, the EU seems to take the view that we are talking about half a year. 

Frankly, we are not sure what the right answer is when it comes to the Settlement Scheme. We would advise anyone who’s not yet reached 180 days to play it safe and avoid exceeding that limit. But we 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 as part of a Settlement Scheme application. The applicant simply needs to self-certify they’ve spent no more than six months outside the UK in any 12-month period.

This suggests a more relaxed approach to absences than the Home Office adopts in other types of settlement. That said, the Home Office will have a record of travel where eGates have been used at airports and where travel has been stamped in a passport, 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 very 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, applicants are permitted “a single period of absence” that does not exceed 12 months and 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.

The Home Office has issued guidance on whether COVID-19 is an “important reason”. Unfortunately, according to this guidance the pandemic will only justify an absence of up to 12 months if the person is forced to remain outside the UK due to travel restrictions, quarantine or COVID-19 related health complications; or if they are enrolled at British university and are being allowed to study remotely. If someone has made a conscious decision to remain abroad – e.g. for economic reasons, because they want to be closer to their family members or because they consider the risk to their health to be greater in the UK than in another country – the guidance implies that this won’t count.

Similarly, we are often asked about people who travel frequently for work-related reasons (at least pre-pandemic). We are afraid we can’t see how this falls within one of the permitted exceptions as it’s repeat travel 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.  

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. 

Posted on Mar 02, 2021.

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