The EU Settlement Scheme was introduced by the UK to preserve the rights of EU citizens and relevant family members who had been living in the UK prior to the end of the transition period, 11 pm on 31 December 2020. It also provides for an indefinite right for EU citizens to bring 'joining family members' to the UK as long as the relationship existed prior to 31 December 2020.

The deadline to apply to the EU Settlement Scheme was on 30 June 2021. The Home Office has published guidance regarding the situations in which a late application can be made. One group of people that may not have applied in time are those who had previously lived in the UK but were not resident in the UK at the time of Brexit.

This article considers the possibility for such people to apply for Settled Status based on a historic period of residence in the UK.

Do I have a historic 5 year period of residence?

EU citizens or their family members who completed a continuous qualifying period of five years residence in the UK prior to 31 December 2020 may be able to apply for Settled Status (Indefinite Leave to Enter) based on this historic period.

They will need to provide evidence of the period of residence relied on. If they were issued a Document Certifying Permanent Residence or a Permanent Residence Card under the EEA Regulations, this will be easier to prove. If not, this may be proven through National Insurance records, evidence of studies or employment, and official correspondence relating to residence in the UK.

Has there been a 'supervening event'?

They will also need to show that since completing their most recent 5 year qualifying period of residence, no 'supervening event' has applied.

The most relevant of these for those who subsequently relocated abroad, is that they must not have been absent from the UK for a period of more than 5 consecutive years since they last completed a continuous qualifying period of five years.

As this requires 5 consecutive years of absence, a trip to the UK for just one day would be enough to prevent this 'supervening event' taking place. Evidence of any trips to the UK since departing from the UK should therefore be provided, such as flight itineraries and accommodation bookings.

Other 'supervening events' relate to orders made to exclude, remove or deport the person.

Is there a reasonable ground for the delay in making the application?

The deadline to make an application to the EU Settlement Scheme based on residence prior to 31 December 2020 was 30 June 2021.

However, the Home Office has published guidance on where there will be 'reasonable grounds' for a late application. This will be a fact-specific assessment depending on the Applicant's circumstances and any compelling and compassionate issues that are raised. One example given where a person might have a reasonable ground, is where the person was unaware of the requirement to apply to the EU Settlement Scheme by the deadline, which could be if they had been living overseas. So far, it seems that the Home Office is being relatively flexible with regard to late applications, but again, evidence will be required to show the circumstances surrounding the delay.

What is the outcome?

If the application is successful, this means the Applicant has a right to return to live permanently in the UK. They will also be able to sponsor any eligible family members under the EU Settlement Scheme rather than Appendix FM of the Immigration Rules.

If they do not wish to return to the UK yet, this option is preserved as long as they return to the UK at least once every 5 years, to avoid their status lapsing as a result of the 'supervening event'.

An Example

Rodrigo is a citizen of Portugal. He lived in the UK from 2009 to 2016, during which he studied and worked in the UK. He moved to the USA as he was offered employment there. While he was there, he met Gabriela, a US citizen, and they married in 2019. Rodrigo visited the UK in 2018 to attend a friend's wedding, and again in 2022 for a business trip.

The couple have now decided to relocate to the UK.

Rodrigo can make a late application for Settled Status based on a 5 year period of historic residence ending in 2016. Since then he has not had 5 consecutive years' absence as he visited the UK in 2018 and 2022. He should provide evidence of his residence in the UK, his trips since he left, and any particular reasons for a delay in making an application to the EU Settlement Scheme.

If his application is successful, he can sponsor his wife for an EU Settlement Scheme Family Permit as his family member as they married prior to 31 December 2020.

Commentary

The UK government made the decision that the period of absence that would lead to Settled Status being lost is 5 consecutive years. This is more generous than the position for those with Indefinite Leave to Remain under other parts of the Immigration Rules, as this lapses automatically after 2 consecutive years of absence.

This has the effect that those who previously built up rights based on residence as an EU citizen or family member have these rights protected for a longer period of time. People that left the UK prior to Brexit may have been completely unaware that they were eligible for status under the EU Settlement Scheme. Unlike those that were residing in the UK, they were not required to make any application as they were outside the UK. For some, this route means that their route to returning to the UK is more straightforward than anticipated.

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.