The EU Settlement Scheme – Absences from the UK during the Continuous Qualifying Period

published on 20 January 2021 | reading time approx. 2 minutes

    
Following the end of the Brexit transition period on 31 December 2020, whilst EU citizens who successfully apply to the EU Settlement Scheme by 30 June 2021 will be able to continue living and working in the UK¹ after 30 June 2021, any lengthy absences from the UK during the preceding five years “continuous residence” period, even when holding pre-settled status, could put their future settled status in jeopardy. 

Continuous qualifying period

It is established knowledge that EU citizens and their family members will qualify for settled status after completing “a continuous qualifying period” of five years’ residence in the UK. Those living in the UK for less than five years qualify for pre-settled status instead and can apply to change this to settled status once they have five years’ continuous residence.

 
A “continuous qualifying period” is defined in Annex 1 of the Appendix EU of the Immigration Rules as a period of residence that began before 11pm (GMT) 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; or

 
3. A deportation, exclusion or removal decision or order.

  
The exceptions referred to in the first point above are:

• one period of absence abroad of up to 12 months for an important reason (for example, childbirth, serious illness, study, vocational training or an overseas work posting);
• compulsory military service abroad of any length;
• time spent abroad as a Crown servant, or as the family member of a Crown servant; or
• time spent abroad in the armed forces, or as the family member of someone in the armed forces

Absences

Key points to note regarding absences are, firstly, that the wording is plural: “absence(s)”, meaning that the six-month cap is not limited to a single period outside the UK but can also comprise the total length of a multiple shorter trips.

 
The rules also refer to absence(s) during “any 12-month period”, meaning that this is not restricted to a calendar year, rather it is any rolling 12-month period. Further, it should be noted that these are examples only and the list is not exhaustive. There have been indications from the Home Office that longer absences related to the coronavirus pandemic may also be permitted to fall within this exception.

Exceeding the six-month absence

Absence(s) of more than six months that do not fall within one of the exceptions will break a person’s “continuous qualifying period”. If, following the absence(s), the individual retuned to the UK before 11pm on 31 December 2020, this would have reset their “settled status clock” and they would have started the five year period again from the date they returned to the UK. They will have to re-apply for pre-settled status by 30 June 2021 and, as such, their right to upgrade to settled status later will be preserved.

 
However, if someone with pre-settled status exceeded the permitted absence and returned or returns to the UK after 11pm on 31 December 2020, they will be unable to restart the five year continuous qualifying period at all, due to how the continuous qualifying period is defined in the Immigration Rules (i.e. that it began before 11pm on 31 December 2020). If such individuals intend to stay in the UK after their pre-settled status expires and they cannot rely on one of the exceptions set out above, they will need to look at applying for a visa under the UK’s new points-based immigration system instead.

 
It should be noted that pre-settled status is only lost through two years of absence from the UK rather than six months, so this issue only affects those who intend to stay in the UK indefinitely and to apply for settled status after the expiration of their pre-settled status.

 
As such, lengthy absence(s) during the continuous qualifying period may not prohibit an individual staying in the UK indefinitely, but the reasons for such absences and the dates of the same need to be carefully analysed so that the risks are fully appreciated and to determine the best way forward. 

[¹] All references to “the UK” also include the Channel Islands and the Isle of Man.