The Home Office has recently issued updated policy guidance on coronavirus related absences under the EU Settlement Scheme, following a legal challenge to the previous policy (published 15 December 2020).
The guidance acts as a concession outside the Immigration Rules (Appendix EU) until the Home Office is able to amend the Immigration Rules.
Continuous qualifying period
In order to obtain Settled Status, a person must have a 'continuous qualifying period' of five years residence in accordance with Appendix EU. This will be broken if the person is absent from the UK for more than six months in any 12 month period.
The continuous qualifying period will not be broken if there is a single period of absence for up to 12 months for an 'important reason', which must be evidenced. The examples given are pregnancy, childbirth, serious illness, study, vocational training or an overseas posting. Other exceptions are absences due to compulsory military service, a posting on Crown service or a period spent working in the UK marine area.
Once a person has broken their continuous qualifying period of residence, they will not be able to qualify for Settled Status when their leave expires, unless they were able to return to the UK by 31 December 2020, restart their continuous qualifying period of residence, and apply for Pre-Settled Status based on this new period.
The impact of the coronavirus pandemic meant that many people who held Pre-Settled Status were absent from the UK for more than six months. The previous Home Office policy did not adequately take this into account.
Reasons for Covid-19 related absences
The updated guidance confirms that absences related to coronavirus also qualify as an 'important reason' and therefore a person will not be treated as having broken their continuous qualifying period.
The policy lists the following non-exhaustive coronavirus related reasons which count as an 'important reason':
- ill with coronavirus
- in quarantine, self-isolating or shielding in accordance with local public health guidance on coronavirus
- caring for a family member affected by coronavirus
- prevented from returning earlier to the UK due to travel disruption caused by coronavirus
- advised by your university that, due to coronavirus, your course was moved to remote learning and you were advised or allowed to return to your home country to study remotely
- advised by your university or employer not to return to the UK, and to continue studying or working remotely from your home country
- absent from the UK for another reason relating to coronavirus, for example, you left or remained outside the UK because there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas
The guidance is much broader than previously which took a narrow approach to 'coronavirus-related absences' limiting this to being ill with coronavirus, self-isolating, being prevented from travelling or studying remotely. In particular, it recognises that many people will have chosen to leave the UK or remain outside the UK for longer than strictly necessary due to the pandemic. People may have done so if they were elderly or clinically vulnerable, wished to comply with guidance to avoid non-essential travel, or simply felt safer overseas.
Evidence will need to be provided in relation to the length of the coronavirus related absence and the reason for this.
Absence between 6 and 12 months
An absence of more than 6 months in any 12 month period will usually break the 'continuous qualifying period'.
However the new policy states that if the person intended to be absent for no more than 6 months but exceeded this for a coronavirus related reason, they will be treated as if they have not exceeded the permitted absence. Evidence should be provided to show that the absence was extended due to coronavirus.
Absence of up to 12 months
As above, if a person is absent from the UK for a single period of up to 12 months for a coronavirus related reason, this will be considered to be an 'important reason' and continuous residence will not be broken.
Absence of over 12 months
The updated policy confirms that a person will not be treated as having broken the continuous qualifying period of residence where:
- The absence is for an 'important reason' whether relating to coronavirus or another 'important reason'
- Coronavirus meant that the absence was extended, and they were unable to return to the UK within 12 months
In this situation, the absence will not be counted towards the continuous qualifying period of residence, and this will be paused. A further application can be made for Pre-Settled Status to reach the necessary qualifying period.
More than one absence of up to 12 months for an important reason
Appendix EU only permits a single period of absence for up to 12 months for an 'important reason'.
The updated policy permits a person to be absent for two periods of up to 12 months, where one of those absences was because of coronavirus. If either absence exceeds 12 months because coronavirus prevented the person returning to the UK earlier, as explained above, the absence will not be counted towards the continuous qualifying period of residence.
The new guidance is very flexible and will mean that many EEA nationals and their family members will remain eligible for Settled Status, or be able to apply for Pre-Settled Status despite a lengthy absence since their last period of residence in the UK. Importantly, the list of coronavirus related reasons is not exhaustive.
The guidance does not resolve the issue of EEA nationals who had planned to arrive in the UK before 31 December 2020 to start a continuous qualifying period of residence, but were prevented from doing so due to coronavirus. People in this situation are excluded from the EU Settlement Scheme, unless they are eligible through another route, for an EU Settlement Scheme Family Permit as a 'joining family member'.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.