Settled status under the EU Settlement Scheme: How excessive continuous or cumulative absences may affect your eligibility

The EU Settlement Scheme (EUSS) gives EU, EEA and Swiss citizens (and, in some circumstances, their family members) the right to apply to live in the UK where they can demonstrate that the relevant EU, EEA or Swiss citizen was resident in the UK before 11:59 p.m. GMT on 31^st December 2020. Many of those who were initially granted pre-settled status under the EUSS will now be approaching the expiry of this status and starting to consider the next steps to apply for settled status in the UK. In doing so, they will need to be mindful of their absences.

Under the Scheme, an applicant must meet a number of eligibility requirements to be granted settled status. For many applicants, this will include demonstrating that they have completed a ‘continuous qualifying period’ of 5 years in the UK. Home Office guidance on the subject states that to complete a continuous qualifying period, an applicant must generally show that they have not been absent from the UK for more than 6 months in total (in a single period of absence or more than one) in any given 12-month period, throughout the period of residence relied upon. This means that, where an applicant has had cumulative absences of more than 6 months in any rolling 12-month period, their continuous residence will be considered broken.

The rolling 12-month period alluded to can be taken as any given 12-month period within the continuous qualifying period relied upon, rather than a calendar year, making it challenging for an applicant to clearly calculate whether or not their absences will break their continuity of residence. 

The Scheme contains concessionary provisions for those who can demonstrate that an absence was for an ‘important reason’. However, this only applies to a single period of absence that is in excess of 6 months but less than 12 months. If an applicant has an additional absence for a period of more than 6 months but less than 12 months, which they can demonstrate is due to Covid-19, this may be accepted as a further concession. Moreover, a period of absence that exceeds 12 months may also be accepted, but only where it can be shown that Covid-19 meant that a person was prevented from, or advised against, returning to the UK earlier– for instance, by evidencing the lockdown restrictions in place at the time they planned to return. If this is accepted, said period of absence should not be counted towards any period of UK residence relied upon by the applicant. In any case, the above concessions do not apply to those with cumulative absences that exceed 6 months.

Moreover, if an applicant is not eligible for settled status on account of their absences, they may be able to apply for a further grant of pre-settled status if they can show that the time spent outside of the UK that broke their continuous residence was before 31^st December 2020, and they returned to the UK by 31^st December 2020. This concession is limited and will not be open to the majority of prospective applicants.

The practical effect of the provisions relating to continuity of residence under the Scheme is that those who have had multiple absences from the UK which total more than 6 months in any given 12-month period, for, say, employment-related reasons or lengthy university holidays, are unlikely to fall within the stated exceptions. If that is the case, they are at risk of losing their eligibility for settled status and, by virtue of this, their current route to settlement in the UK. Those who fall foul of these provisions but wish to remain in the UK may therefore need to consider their eligibility for alternative UK immigration routes.

If you are concerned about your absences, one of the experienced solicitors in our immigration team will be happy to advise on both your eligibility for settled status and, if necessary, the availability of alternative visa routes.