Settled status applications and absences from the UK

Securing your settled status is a milestone to celebrate so UK immigration solicitors are urging those thinking about applying for settled status and those with pre-settled status under the EU Settlement Scheme to understand the rules on absences and the EU Settlement Scheme to avoid you losing your right to settled status.

UK Immigration solicitors

If you have questions about settled status and the EU Settlement Scheme or about extended absences from the UK and your Immigration status call the immigration solicitors at London based OTS Solicitors on 0203 959 9123 or contact us online. Appointments can be arranged via video call, Skype or telephone.

Absences from the UK and settled status

Whether you have settled status or pre-settled status under the EU Settlement Scheme you can leave the UK as long as your absences are “permitted absences”. That doesn’t mean that you need to get Home Office approval to leave the UK but it does mean that you need to understand the settled status scheme rules on absences. The absence rules vary depending on whether you have settled status or pre-settled status.

Qualifying for settled status

Immigration solicitors say that you first need to look at the qualifying residence requirement for settled status and pre-settled status before looking at the absence rules.

You will meet the residence requirement eligibility criteria for settled status under the EU Settlement Scheme if you have lived in the UK for a continuous qualifying period of five years of residence. If you don’t meet the five-year qualifying period you can still apply for pre-settled status provided that you entered the UK to live before the end of free movement for EU nationals on the 31 December 2020. Once you have completed the five years residence requirement you can secure settled status.

What is a continuous qualifying period for settled status?

The UK Immigration rules, specifically Appendix EU, defines what is meant by the continuous qualifying period for settled status. Put simply, you need to have been living in the UK before 11 pm on the 31 December 2020 and the residence requirement can't have been interrupted by:

• An absence (or absences) from the UK that exceed a total of six months in any twelve-month period unless you fall within one of the qualifying exceptions or
• A prison sentence or
• An exclusion or removal decision or order or a deportation order.

How to calculate absences for the continuous qualifying period

You would think that it would be easy to work out if you have been absent from the UK for more than six months in a twelve-month period but immigration solicitors say that the rules can catch out the unwary because:

• All UK absences are calculated so you need to add up all holidays and extended absences to calculate if you have been absent for six months or more
• The twelve-month period is a rolling twelve-months and therefore not calculated by calendar year. That means that calculations can get complicated
• Once you meet the residence requirement of five years (complying with the absence rules) you can still apply for settled status even if you leave the UK on the proviso that you don’t spend five years or longer outside the UK.

Those with a mathematical mind set will be questioning if a month amounts to 28 days or 31 days. The best bet is to make sure that you aren’t absent from the UK for more than 180 days in any twelve-month period.

For those worried about the complexity of the settled status application because of their frequent trips and absences from the UK, you just need to certify that you meet the absence rules without having to detail every absence. However, the Immigration rules and the Home Office approach may change so it is best to keep a record and evidence of trips if you think that you may get near to exceeding the six-month rule.

For those who travel frequently or who have enjoyed extended absences from the UK, every day may count when calculating if you are within the six-month rule or not. The good news is that when counting absence days, it is only a whole day’s absence from the UK that counts towards your total absences, so travel days don’t count. In effect, a trip of three days may only count towards your quota as one day if you travel early on the first day and return late on the third day.

What are the exceptions to the six-month absence rule?

There is an exception to every rule and that is the case with the settled status six-month rule. The Home Office rules allow for a single absence that doesn’t exceed twelve months provided that the absence is for an important reason. Examples given include:

• Pregnancy and childbirth
• Serious illness
• To study.

These are examples and other important reasons may be acceptable to the Home Office, such as a return overseas to care for a seriously ill close relative. If you do need to be away from the UK for up to twelve months it is best to keep evidence of the important reason why the extended absence was necessary.

Breaching the extended absence rules

If you are out of the UK for more than six months and you don’t qualify for an exception then you won't meet the eligibility criteria and the continuous qualifying period for settled status. The impact of that is that you will have to start a new five-year continuous qualifying period from the date you come back to the UK.

If you have breached the five-year residence requirement you may be able to apply for pre-settled status. The rules are complicated as if you have pre-settled status you lose your status if you leave the UK for two or more years. The best advice is therefore to check the absence rules before you leave the UK so you don’t end up having to restart the clock on your qualifying period or end up not meeting the eligibility criteria and having to look at alternate immigration options and visa routes.

Pre-settled status and absences from the UK

When it comes to pre-settled status you need to be particularly careful about absences and the impact on your ability to apply for settled status because:

• Pre-settled status lasts for up to five years. Pre-settled status can't be extended beyond the five years if you breach the absence from the UK rules. In other words, you can't restart the clock but have to go back to square one provided you still meet the eligibility criteria. If you contravene the permitted absence rules you can apply for pre-settled status again but to meet the eligibility criteria for an application under the EU Settlement Scheme you would need to have returned to the UK before the 31 December 2020 to apply for a new grant of pre-settled status
• You can't move up from pre-settled status to settled status if your continuous qualifying period of five years is breached because of extended absences from the UK and you return to the UK after the deadline of the 31 December 2020.

All is not lost if you encounter issues with UK permitted absence rules. Expert immigration solicitors can look at your circumstances and the EU Settlement Scheme rules and your best Immigration solutions.

UK Immigration solicitors

London based OTS Solicitors can help with your EU Settlement Scheme application, assess the impact of absences from the UK on your eligibility and look at your immigration options. For the best advice on settled status and visa routes call OTS Solicitorson 0203 959 9123 or complete our online enquiry form. Appointments are available through video conference, Skype or by telephone appointment.