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How do Covid-related absences from the UK affect EU pre-settled status?
Credit: Ashley Van Haeften on Flickr

How do Covid-related absences from the UK affect EU pre-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. That guidance was updated on 10 June 2021, and we’ve updated this article in line with those very significant changes.

The guidance is important because many EEA citizens have been forced to leave the UK for an extended period due to the pandemic. Such absences don’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 have lost the right to upgrade to settled status if they didn’t return to the UK before 31 December 2020. And even if they did return before that date, their continuous qualifying period of five years needed for settled status would be broken by the absence, so 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

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

The guidance fleshes out this general rule by adding that “you can rely on any coronavirus related reason” as an “important reason”. This includes where you have chosen to remain outside the UK because of the pandemic, e.g. to work remotely or to stay with family. It also includes being forced to remain outside the UK by travel restrictions, having the virus, caring responsibilities, etc.

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This means that if you have pre-settled status and spend, say, eight months of the pandemic outside the UK, this extended absence shouldn’t break your “continuous qualifying period”.

You will however need to provide evidence of the reasons for your absence. For those who already have pre-settled status (likely the majority of people affected), this will be at the point when you apply to upgrade from pre-settled to settled status and may be several years away, so it may be worth putting the evidence aside now. Those who are affected by the absence rules but have not yet applied for pre-settled status, or who have been refused it and are re-applying, would also need to provide evidence in their application.

Evidence could be something like a “doctor’s letter confirming you contracted coronavirus”. But as simply choosing to remain outside the UK because of COVID-19 is a valid reason, you should be able to just write a letter yourself explaining that.

There is also a section of the guidance covering people who have two absences of more than six months. Normally, this would break continuous residence, because Appendix EU only allows for a “single period” of absence to be excused by an “important reason”. But the guidance says that the Home Office will, in practice, not give you a hard time about a second period of absence of between 6-12 months if it was due to COVID-19. The time over six months during the second period of absence will not count towards the five years you need to qualify for settled status, though.

What about single absences longer than 12 months?

The above covers you if you were out of the UK for up to 12 months at a time. If you had a single period of absence lasting longer than that, you can still invoke coronavirus as an excuse. The rules are more strict than for absences of 6-12 months, though. You need to show, again with 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.

Being “prevented from, or advised against” return might mean, for example, that you were:

  • ill with coronavirus
  • in quarantine, self-isolating or shielding in accordance with local public health guidance on coronavirus
  • caring for a family member affected by coronavirus
  • prevented from returning earlier to the UK due to travel disruption caused by coronavirus
  • advised by your university or employer not to return to the UK, and to continue studying or working remotely from your home country, due to coronavirus

As you can’t simply write a letter explaining that you chose to remain abroad in this scenario, keeping records to have evidence becomes more important.

Another important thing to note is that any period of absence beyond 12 months won’t count towards the five years you need to qualify for settled status. “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”.

They seem pretty chill about absences – I thought the rules were stricter?

They were much stricter. The original guidance, published in 2020, contained pretty limited concessions for absences of between 6-12 months, and none at all for above 12 months. The changes have come about because of a legal challenge – rather than a spontaneous outbreak of government generosity.

This article was originally published on 18 December 2020 and has been updated so that it is correct as of the new date of publication shown.

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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