The EU Settlement Scheme is UK Immigration Permission which citizens of the European Economic Area (European Union member states, Iceland, Liechtenstein, and Norway) and Switzerland, and relevant family members, may be able to apply for to remain in the UK if already living here before 1 January 2021.
If you have Settled the Status
After obtaining Settled Status you can spend up to 5 years outside the UK without losing your status, except Swiss nationals who can spend up to 4 years outside the UK.
If you have Pre-Settled Status
Pre-settled status is valid for five years from the date it is granted. Once the pre-settled status is obtained, within this five-year period it can only be lost when someone spends a period of two consecutive years or more outside the UK.
For example, someone who was granted pre-settled status in February 2020, who left in March 2020, could re-enter the UK up to February 2025, if they have not spent a period of two consecutive years outside the UK.
Permitted Absences to maintain residence in the UK
However, it is important that you understand the implications of absences from the UK on any future application for settled status.
If you have absences from the UK which are less than 6 months in any 12-month period, you can still be considered as being continuously resident in the UK to qualify for settled status after 5 years.
UKVI guidance defines a month as “30 calendar days”, so 6 months would be 180 days, so the cumulative total of absences in any 12-month period must not exceed 180 days. You will not need to provide evidence of these absences.
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. “In any 12-month period”, means 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.
The “rolling” concept means that where there are multiple trips, there are multiple 12-month periods and each and every 12-month period must be monitored to make sure absences in “any 12-month period” do not amount to more 6 months. If you travel regularly you need to note your absences so you can monitor the number of days, you have been outside the UK.
One Absence of Up to 12 months for an important reason
A single period of absence of more than 6 months but which does not exceed 12 months is permitted, where this is for an important reason, and will not break your continuous qualifying period of residence.
Important reasons include pregnancy, childbirth, serious illness, study. Evidence to support an absence because of pregnancy, childbirth or serious illness might take the form of a letter or other records from a qualified medical professional or evidence to support an absence because of study might take the form of a letter or other records from the relevant educational establishment.
An absence of any length due to compulsory military service can be considered as continuous residence in the UK.
Absence from the UK due to remote study for up to 12 months due to Covid-19 does not break your continuous period of residence needed to qualify for Settled Status after five years. The EU Settlement Scheme guidance states on page 164 that the following situation is a permissible absence from the UK for an important reason for up to 12 months:
Absences exceeding 12 months
If you have been absent for an ‘important reason’ – whether because of coronavirus or for another important reason – but your absence has exceeded 12 months, you have exceeded the permitted absence.
However, UKVI has introduced a coronavirus concession, meaning that you can still maintain your continuous residence for the purposes of eligibility for Settled Status, where you can evidence that this extended absence is because coronavirus meant you were prevented from, or advised against, returning to the UK within 12 months and for a period thereafter.
The EU Settlement Scheme Guidance outlines on pages 165-166 the type of situation where a Covid-19-related reason may be accepted in relation to absences of longer than 12 months, as well as evidence required.
This means that where, after an absence of 12 months for an ‘important reason’, coronavirus meant you were prevented from, or advised against, returning to the UK within 12 months, you will be treated as not having broken your continuous qualifying period of residence.
The period of absence exceeding 12 months will not be counted towards your continuous qualifying period of residence under the EU Settlement Scheme. Your continuous qualifying period will be paused from the point your absence reached 12 months and will resume from the point you return to the UK.
Where you hold pre-settled status, and this is now due to expire before you can complete the continuous qualifying period of residence required for you to be eligible for settled status, you will be able to apply for a further grant of pre-settled status.
How many permitted absences from the UK can I have in the continuing qualifying
You could have multiple absences of less than 6 months if your absences total less than 6 months in any 12-month period.
You can only have a single period of absence of up to 12 months for an ‘important reason’.
Where you have a second period of absence exceeding 6 months in any 12-month period for an ‘important reason’, you have exceeded the absence permitted.
However, the EU Settlement Scheme Guidance allows you to rely on any coronavirus-related reason (including where you chose to leave or remain outside the UK because of the pandemic) as the basis for requiring a second period of absence of up to 12 months for an ‘important reason’.
For example, you may have been absent from the UK for a period of up to 12 months due to a study abroad year (an accepted “important reason”) and then subsequently, you had a second absence from the UK for a period of up to 12 months due to coronavirus imposed remote study. In this case, you should be able to maintain your continuous residence in the UK even though you have had two absences
In these circumstances, you will be treated as not having broken your continuous qualifying period of residence.
However only up to the first 6 months of the second period of absence will be counted towards your continuous qualifying period of residence under the EU Settlement Scheme, where the period counted means you have not been absent for more than 6 months in any 12-month period.
Your continuous qualifying period will be paused from that point and will resume from the point you return to the UK.
Your options if you have exceeded or will exceed the permitted absences
The following options may be available to you if you have been granted Pre-Settled status, but have exceeded the permitted absences detailed above:
Once you have been granted Pre-settled Status, you can spend up to 2 years outside the UK without losing your status.
If you have exceeded the permitted absences, described above, but have not been absent for more than 2 continuous years, you could return to the UK, and stay for the validity of your Pre-settled Status. You would need to leave the UK or apply for appropriate immigration permission in a relevant category before your Pre-settled status expires.
If you exceeded the permitted absences and then re-established your residence in the UK before 31 December 2020, you could reapply for Pre-settled Status before the expiry date of your current Pre-settled Status. 5 years after you re-established residence, you would be eligible to apply for Settled Status if you have not exceeded the permitted absences again.
Contact our Immigration Advisers
For expert advice and assistance in relation to applying for pre-settle or settled status under the EU settlement scheme, please contact our immigration advisers in London at 0208 536 5532 or via the enquiry form below.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Nexus Visas and its authors accept no responsibility for loss that may arise from accessing or relying on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Nexus Visas. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Nexus Visas.