Covid-19 related absences under the EU Settlement Scheme

It has now been over 12 months since coronavirus first appeared in the UK, and its impact is still being felt around the world in many aspects of life – including on UK immigration law. For example, a number of EEA nationals (and their family members) who hold or who have applied for pre-settled status under the EU Settlement Scheme will have left the UK and returned to their home countries during the pandemic for reasons related to coronavirus - and may now have exceeded the maximum length of time absent from the UK to be eligible for settled status in the future under the EU Settlement Scheme rules.

In June 2021, the Home Office updated their guidance and introduced a concession under the EU Settlement Scheme in terms of absences from the UK due to Covid-19, indicating a more lenient approach will now be taken in respect of absences during the coronavirus pandemic.

The existing rules under the EU Settlement Scheme state that if someone who holds pre-settled status in the UK is absent from the UK for more than 6 months in any rolling 12 month period (whether that be one single 6-month long absence or a total of 6 months absence made up of a number of short absences) then their continuity of residence is broken.

This is significant because if an individual’s continuity of residence is broken, this will impact their eligibility to apply for settled status in the future. An individual who has spent more than 6 months in any 12 month period out of the UK during a period of residence in the UK will normally not be considered to have completed the continuous qualifying period of at least 5 years necessary to be eligible for settled status.

There have always been some exceptions, and the Home Office’s general position since the EU Settlement Scheme was introduced has been that a single absence of more than 6 months but not longer than 12 months would be permitted (and not break the continuity of residence), where it was for an ‘important reason’. In response to a recent court challenge, the Home Office has now expanded the scope of what constitutes an ‘important reason’ to include excess absences from the UK due to Covid-19. 

For those individuals who have been absent from the UK for over 6 months but less than 12 months, what is especially significant is that this exception is not just applicable to those who have been ill or shielding with Covid-19, those who have been unable to return due to travel restrictions or who have been advised by employers/universities to work/study remotely from their home country.

It also extends to cover those who were ‘absent from the UK for another reason relating to the COVID-19 pandemic’, and, for example, covers those who left the UK or remained outside of the UK because there were fewer coronavirus related restrictions elsewhere, or who would have been unemployed in the UK and wanted to rely on support from family/friends abroad. This now counts as an ‘important reason’ permitting a single absence from the UK of up to 12 months without breaking the continuity of residence. 

The updated guidance also addresses the position of those individuals who have been absent from the UK for a single period of over 12 months for a Covid-19 related reason. The Home Office has confirmed that an absence of a single period of over 12 months due to a Covid-19 related reason can fall within the scope of an ‘important reason’ for absence from the UK, and therefore within the exception too. However, it is important to note that for these longer absences, an individual must show and be able to provide evidence that they were ‘prevented from or advised against’ returning to the UK.

The scope for a Covid-19 related absence of over 12 months is narrower, and there is no explicit mention in the guidance (unlike in respect of an absence between 6 months and 12 months) of such an absence being permitted for simply choosing to leave or remain out of the UK during the pandemic. The Home Office give examples of such an absence being permitted when an individual has been ill with Covid-19, self-isolating or quarantining, caring for a family member due to Covid-19, prevented from returning to the UK due to travel restrictions, or advised not to return to the UK by their employer or university. Evidence will require to be provided in respect of such absences.

Even if the Home Office accept that an absence of over 12 months has not broken an individual’s continuous qualifying period in the UK, it will not count as residence in the UK to be counted towards a grant of settled status. Rather, this absence will have ‘paused’ an individual’s continuous qualifying period, which will resume upon their return to the UK.

Provision is also made in this updated guidance for what the Home Office position is in respect of those who have two absences over six months, at least one of which was due to Covid-19.

The Home Office has advised that all cases – whether an absence of between 6 months and 12 months or an absence of 12 months or over – will be considered on a case-by-case basis based on the information and evidence provided in respect of the time spent out of the UK.

It is currently unclear, however, whether this absence concession applies to those individuals who have multiple absences from the UK of under 6 months each, but which cumulatively amount to an absence of over 6 months – even if those absences all related to Covid-19. Whilst the online information on the gov.uk website seems to indicate that as long as an individual intended to be absent from the UK for no more than 6 months but this was exceeded due to Covid-19, the concession would apply; however, significantly, the guidance document issued by the Home Office in respect of the absence concession only makes reference to one ‘single’ absence of over 6 months.

It, therefore, remains to be seen how the Home Office will interpret this concession in practice.

If you would like any advice or assistance regarding your immigration status during the Covid-19 pandemic then please do not hesitate to contact one of the experienced solicitors in our immigration team.