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 are outside the UK for more than six months in any 12-month period during the five years it takes to qualify for full settled status, they will generally have to start the five years all over again. And if they return after 31 December 2020, they may lose the right to upgrade to settled status entirely.
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 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:
- Absence(s) from the UK exceeding a total of six months in any 12-month period, subject to some exceptions discussed below
- A prison sentence
- A deportation, exclusion or removal decision or order (in very general terms)
I’m 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 means 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, an applicant will only lose the right to apply for settled status if they spend five years or more outside the UK (a so-called “supervening event”).
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 kinds of application 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 (the same limit applied to indefinite leave applications in the Tier 2 (General) and Tier 1 (Investor) categories). This is of course slightly less than half a year, which would be 182.5 days exactly.
Frankly, I’m not sure what the right answer is when it comes to the Settlement Scheme. I’d advise anyone who’s not yet reached 180 days to play it safe and avoid exceeding that limit. But I 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 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.
I’m often asked about people who travel frequently for work-related reasons. I’m afraid I 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).
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?
Absence(s) of more than six months that don’t fall within one of the exceptions will break a person’s “continuous qualifying period”. This means that the person has to begin a new five-year continuous qualifying period from the date they return to the UK to get settled status.
But, for the moment at least, it does not mean the applicant needs to leave the UK or that the person’s pre-settled status comes to an end. In fact, pre-settled status only lapses through two years of absence from the UK. This is according to the EU Settlement Scheme website, probably reflecting section 13(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000:
where the holder has stayed outside the United Kingdom for a continuous period of more than two years… any leave then remaining (where the leave is limited) shall thereupon lapse.
But there are two very important caveats. First, a person who has broken their continuous residence period will still need to reapply for pre-settled status when they return to ensure that they can ultimately upgrade to settled status. That is because pre-settled status can’t be renewed or extended, so an interruption will leave the person short of the five years they need to qualify with no way of making up the time.
The second important caveat is that the settled status clock cannot be restarted after 31 December 2020. That is because of how a “continuous qualifying period” is defined in Appendix EU: it has to begin before 11pm on that date. 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.
Someone in this situation would have to rely on the exceptions discussed above to argue that their continuous qualifying period had not been interrupted by the lengthy absence. It is possible that Home Office caseworkers will be sympathetic to absences related to coronavirus, or that it will make a new general exception making allowances for the pandemic. We understand that the department is considering something along these lines. But if no announcement is made, the rules as written suggest that pre-settled status holders who return to the UK later than the end of this year will be in trouble if they have been gone for more than six months.
Possible sources of confusion
The Settlement Scheme is awash with various time periods that applicants need to consider, so to sum up:
- EU citizens and their family member qualify for settled status after a “continuous qualifying period” of five years’ UK residence
- 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)
- Pre-settled status lasts for five years max. If a holder of pre-settled status breaks their continuous residence but returns 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
- 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
- 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
- Once someone has already completed a “continuous qualifying period” of five years, they can spend up to five years outside the UK without losing the right to apply for settled status
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.
My thanks to Chris Benn and Chris Desira of Seraphus Solicitors for their comments on a draft of this article.