The EUSS was introduced to provide EU, EEA and Swiss citizens living in the UK by 31 December 2020, as well as their family members, the opportunity to obtain limited leave to remain (pre-settled status) or indefinite leave to remain (settled status) in the UK, to replace rights previously held under European free movement laws, in particular the UK’s Immigration (EEA) Regulations.

Applications to the scheme were initially open until 30 June 2021. It is still possible to make an application to the EUSS if you can show there are “reasonable grounds” why you did not apply by the specified deadline. It is essential to understand the rules surrounding absences from the UK in order to get and maintain your pre-settled or settled status. Long absences in particular can affect your eligibility for pre-settled or settled status, or even lead to the loss of pre-settled status that has already been granted. Understanding long absences on EU Settlement Scheme rules is critical to ensure compliance.

Absence Rules

In order to be eligible for pre-settled status, an applicant would need to demonstrate that they were living in the UK by 31 December 2020 and that they have not been absent from the UK for more than 6 months in any 12 month period since then. Once granted, pre-settled status generally lapses if the holder is absent from the UK for more than 2 continuous years.

If you hold pre-settled status, you must meet specific requirements to eventually qualify for settled status. You will normally need to show that you completed at least 5 years of continuous residence in the UK, and that since the end of the 5-year period, you have not been continuously absent from the UK for more than 5 years; continuous residence requires you to show you were present in the UK for at least 6 months of any 12-month period.

Exceptions

In some cases, you can rely on an exception to the absence rules when assessing continuous residence, relevant for both pre-settled, and settled status applications. The rules regarding absences under the EU Settlement Scheme are complex, and the Appendix and Guidances should be consulted for a detailed breakdown. They can, however, be summarised as below:

•      A single period of absence of more than 6 months but which does not exceed 12 months could be permitted, where this is for an important reason; Examples listed of ‘important reasons’ include pregnancy, childbirth, serious illness, study, vocational training or an overseas posting, domestic abuse or COVID-19.
•      A second period of absence of more than 6 months and less than 12 month could also be permitted on the basis of the following:

o   If your first period of absence was due to Covid-19, then your second period cannot be due to Covid-19 (unless you were caring for someone with Covid-19)

o   Where your first period was not related to Covid-19, the ‘important reason’ for your second absence would need to be related to Covid-19

o   Therefore, at least one of your two absences must be related to Covid-19 (so, for example, you are not permitted to have two study related absences)o   Where you have a second absence, time spent outside of the UK that exceeds 6 months will not count towards your qualifying period – this absence effectively ‘pauses’ your residence but does not break it (for example, if your second absence is 8 months, the 2 ‘additional’ months would need to be made back up

•      A period of absence longer than 12 months under any of the ‘important reasons’ may be permitted where Covid-19 prevented you, or you were advised against, returning earlier. Again, an absence over 12 months won’t count towards your qualifying period for settlement.
•      Any period of absence might be permitted if it is related to compulsory military service, crown service or was spent working in the UK marine area.

Your reasons for extended absences will need to be well evidenced. Your continuous residence may be considered broken if your absences exceed the permitted limits without qualifying reasons. This means that you may need to restart the five-year qualifying period for settled status, or if your pre-settled status expires and you have not accrued five years of continuous residence, you could lose your right to remain in the UK (although pre-settled status holders who have not obtained Settled Status will usually receive an automatic extension of their pre-settled status).  Once you have obtained settled status, you can spend up to five consecutive years outside the UK without losing your status (or four years for Swiss citizens). 

    Tips for consideration of absences:

•      Track your travel -  maintain a detailed record of all trips outside the UK, including dates and reasons, to avoid complications with absences for pre-settled status.
•      Plan ahead - if you anticipate a long absence that might fall within a specified exception, start gathering related evidence, such as medical records, employment contracts, or proof of studies, to support your case. 
•      If you are considering making an application for British citizenship, you should exercise caution regarding extended absences; for citizenship applications, you must meet far stricter residency requirements, including limited time spent outside the UK. 
•      Seek legal advice - if your circumstances involve extensive absences or unusual circumstances, consult an immigration expert. Managing EUSS absences guidance requires careful planning and awareness of the relevant Immigration Rules and published guidance. Managing long absences under the EUSS requires careful planning and awareness of the relevant Immigration Rules and published guidance. Whether you hold pre-settled or settled status, exceeding the allowed absence limits can have serious consequences for your immigration rights. Professional advice can help you navigate the rules and avoid risking your status. 

If you’re unsure how absences might affect your EUSS status, don’t wait until it’s too late. As a boutique law firm specialising in UK-inbound immigration, our experts understand the complexity and uncertainty that constantly shifting immigration policies create for individuals. Our lawyers can provide up-to-the-minute legal advice on how any changes will impact your application.

Call Latitude Law today on 0300 131 6767 or fill out our enquiry form and we will get straight back to you. Let our legal experts take the uncertainty out of your EUSS application so you can start your successful journey towards residency in the UK today.