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How do Covid-related absences from the UK affect EU settled status?
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How do Covid-related absences from the UK affect EU settled status?

On 15 December 2020 the Home Office published a short guidance document covering absences from the UK connected to COVID-19. It applies to EEA citizens and their family members who have settled or pre-settled status under the EU Settlement Scheme, or those who are eligible but haven’t applied yet.

The guidance is important because many EU citizens have been forced to leave the UK for an extended period in 2020 due to the COVID-19 pandemic. This doesn’t really matter to anyone who has settled status (or qualifies for it): as they have already completed their five-year “continuous qualifying period”, they are entitled to leave the UK for up to five years without their right to live here lapsing.

But as we’ve mentioned before, absences from the UK can be important to someone with less than five years of residence: those with pre-settled status (or who qualify for it). If they are absent from the UK for more than six months, they may lose the right to upgrade to settled status if they don’t return to the UK before 31 December 2020. And even if they do return before that date, their continuous qualifying period of five years needed for settled status would be broken — they would need to start a new qualifying period and wait a full five years before being able to upgrade.

Exceptions to the six-month rule

There is a general rule within the Settlement Scheme that:

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.

Acceptable examples of important reasons are listed in Appendix EU as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting.

But as the Settlement Scheme was launched before the pandemic, this new guidance looks at when a COVID-related absence between six and 12 months will be accepted as an important reason. In other words, what happens if you have pre-settled status and spend, say, eight months of the pandemic outside the UK — can you argue that the circumstances were so important that the extended absence doesn’t break your “continuous qualifying period”?

COVID-19 will be accepted as an “important reason” only in certain, limited circumstances. Unfortunately, situations that are not covered are where a citizen has made a conscious decision to remain abroad for economic reasons, because they wanted to be closer to their family members or because they considered the risk to their health to be greater in the UK than in another country. The guidance only caters for situations where a person is considered to be forced to remain outside the UK due to travel restrictions, quarantine or COVID-19 related health complications. The only minor concession beyond this is for students who are enrolled at British universities but have been allowed to study online; the guidance says that they are considered to have an important reason to be absent for up to 12 months.

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The guidance then confirms that an absence that exceeds 12 months will always break the citizen’s continuous qualifying period irrespective of COVID-19.

The pretty limited concession for absences of between six and 12 months is disappointing. The Home Office has been working on its COVID-19 absences policy for months and the outcome is a very short guidance document which does little more than reiterate the conditions that a citizen has to comply with in order to maintain their continuous qualifying residence under the Settlement Scheme. It had been hoped that the policy would provide more wide-ranging concessions, or allow caseworkers more discretion to overlook extended absences if the situation is sufficiently compelling.

Chris Benn

Chris Benn is Legal and Policy Advisor at Seraphus Solicitors. He is accredited as a Senior Caseworker and Supervisor under the Immigration and Asylum Accreditation Scheme. Seraphus provides advice on the EUSS and EU citizens' rights to the EU Delegation to the UK.

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