During the course of 2020, many EEA nationals who have been living in the UK have moved abroad due to reasons relating to the COVID-19 pandemic. In important guidance issued by the Home Office on 15 December 2020, the Home Office has confirmed that the normal rules on absences will be applied when assessing eligibility for pre-settlement and settlement under the EU Settlement Scheme (EUSS). What this means is that some EEA nationals will need to return to the UK by 11 pm on 31 December 2020 if they wish to avoid losing their eligibility for pre-settled and/or settled status under the scheme.

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What does the guidance say on continuity of residence?

In the guidance, the Home Office has declined to offer any concessions outside the EUSS Immigration Rules in relation to the COVID-19 pandemic.

As a reminder, only individuals who start a continuous residence period by 11 pm on 31 December 2020 are eligible under EUSS. For settlement under EUSS, a person must have five years’ continuous residence in the UK. This is interpreted by the Home Office to mean that they must have no more than six months’ absence from the UK in any 12-month period across the five years, except for:

• A single period of absence of more than six months, but not more than 12 months for an ‘important reason’ – accepted reasons include pregnancy, childbirth, serious illness, study, vocational training or an overseas posting
• Compulsory military service of any duration
• Posting on Crown service of any duration (or accompanying a person on Crown service as their spouse, civil partner, durable partner or child)
• Working in the UK marine area of any duration

The guidance keeps to this formula, but also introduces a very limited interpretation of when the Home Office will accept that COVID-19 related single absence will be accepted as an ‘important reason’. The interpretation focuses on the accepted reasons of study and illness as follows:

• Being a person studying in the UK, who studied outside the UK because of COVID-19
• Self-isolation under quarantine conditions when ill with COVID-19
• Self-isolation under quarantine conditions when sharing a house with someone ill with COVID-19
• Being required to self-isolate due to being in a vulnerable or high-risk category, or being in contact with someone who is

Practically, aside from students, unless a person has suffered a ‘long COVID’ type illness or has been required to shield for more than six months, it is highly unlikely a person will be able to bring themselves within this interpretation of important reason.

It should be noted that the ‘important reason’ provision:

• Only relates to a single absence – therefore people who have more than six months’ absences in any 12-month period will not be able to avail themselves of the provision if none of their absences exceeded more than six months at any one time
• Can only be used once across the entire five-year period – so anyone relying on this provision for a COVID-19-related reason will need to ensure they have no more than six months absences in any other 12-month period, or this will break the continuity of their residence for settlement

Something that is also not made explicit in the guidance is that cumulative absences of more than six months in any 12-month period will also break a person’s continuity of residence for settlement eligibility under EUSS.

Why is this a problem?

The restrictiveness of the COVID-19 policy will undoubtedly catch some people out.

Examples of situations that would fall outside the policy include where a person:

• has chosen to work remotely during the pandemic, but not on an overseas posting
• has left the UK to be with family abroad
• has left the UK because they feel safer
• has been unable to return to the UK due to flight restrictions or other travel disruption relating to the pandemic

‘Important reason’ is not an exhaustively defined term, and it is possible to argue that any circumstances ought to be recognised as such. However, the Home Office has signalled how it intends to treat COVID-19 related absences and it would take cogent reasons to prompt a departure from their published policy.

What happens if there is no return to the UK by 11 pm on 31 December 2020 for EEA nationals who have broken the continuity of their residence?

For people who already have pre-settled status

There will be no immediate effect on the validity of their pre-settled status provided they do not remain outside the UK for a continuous period of two years or more. However, the break in the continuity of their residence will mean that they will not qualify when they come to apply for settled status. Once their pre-settled status is due to expire, they will either need to leave the UK or apply for further permission to stay in the UK under an alternative immigration category if they qualify for one.

Currently, the Immigration Rules for other categories that lead to settlement do not allow time under EUSS to be counted towards the qualifying period for settlement. Unless the Home Office amends the Rules in the future, what this will mean is that affected individuals will have to start their qualifying period for settlement again from the point they move into another immigration category.

This is a matter we intend to raise with the Home Office. If the Home Office decides not to add EUSS as a category for which time can be counted towards settlement in other immigration routes, then the best course of action for affected individuals may be to switch into alternative immigration routes earlier rather than later if this is feasible and their priority is to achieve settlement as soon as possible.

For people who have not yet applied under the EU Settlement Scheme

Most people who have acquired a right of permanent residence in the UK under EU law will not be affected, unless by the time they apply under the scheme they have been absent from the UK for a continuous period of five years. They must also still ensure they apply by 30 June 2021.

However, for people without a right of permanent residence, the break in the continuity of their residence will mean that if they do not re-enter the UK by 11 pm on 31 December 2020, they will have lost their eligibility under the EUSS altogether. This is because they will no longer be considered to have started a continuous residence period by the required deadline for eligibility under the scheme. 

What can be done to preserve eligibility to apply under the EU Settlement Scheme and to settle under it either immediately or in the future?

We would suggest that all EEA nationals who have been previously resident in the UK without a right of permanent residence under EU law/without settled status under EUSS, but who are currently residing abroad should take the following actions as appropriate:

• Review both their single and cumulative absences from the UK as at the date they intend to return to the UK, including considering whether any one (but only one) period of absence was for an ‘important reason’
• Identify the latest date they can return to the UK without it affecting their eligibility to apply under EUSS if they have not yet applied, or for settlement if they already hold pre-settled status
• If the latest date has already passed, or will pass before 31 December 2020, or they anticipate having absences that would take them above the thresholds during 2021/at any point before they expect to qualify for settled status – return to the UK by 31 December 2020 so they can establish a fresh period of qualifying residence for the purposes of EUSS
• If the latest date has not yet passed but they cannot return to the UK by the date their eligibility for settled status will be affected, still consider making an application under EUSS from abroad before the latest date so that they will have a five-year period of pre-settled status in which to consider their options
• As relevant, closely monitor their future absences to ensure they do not breach the thresholds

Those who acquired a right of permanent residence in the UK should ensure they make an application for settlement under EUSS before they have been absent from the UK for five years, and by 30 June 2021. This application can be made while the person remains abroad.

We appreciate that the above assessments may be complex and that time is short to make them. If you require assistance, please get in touch with your usual Lewis Silkin immigration team contact, or email Immigration.London@lewissilkin.com over the holiday period.

Related Item(s): Immigration & Global Mobility, Immigration

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt, Naomi Hanrahan-Soar, Stephen OFlaherty,