Bishop & Sewell

COVID-related absences leading to lengthy periods of time outside the UK may no longer prevent people upgrading from pre-settled status to settled status, under new Home Office guidance on the EU Settlement Scheme.

Until recently, the Home Office has insisted that absences linked to the coronavirus were not deserving of any special treatment, despite the exceptional nature of the pandemic.

The starting position under the Settlement Scheme, as I have discussed at length here, is that absences of up to 6 months in any 12-month are not deemed to break the 5 years of continuous UK residence needed to upgrade from pre-settled status to settled status. The rules also allow for a single absence of up to 12 months within the 5-year period provided this is for an “important reason” such as childbirth or study.

The Home Office had previously acknowledged that certain COVID-related absences could fall within the existing framework, constituting an “important reason” such as to justify a single absence of up to 12 months – but this would only be the case if the applicant had been physically unable to travel, for example if they were ill in hospital or if the borders were closed.

But the new guidance, which follows a legal challenge by the Here For Good organisation, adopts a more reasonable approach. The Home Office is in the process of incorporating the guidance into the Immigration Rules, at which point lingering uncertainties will hopefully be cleared up but this is my first take on the new position from what has been published so far.

Category 1: Coronavirus as single “important reason”

Category 1 allows for “any coronavirus related” absence of up to 12 months to be treated as an “important reason” justifying a single absence of up to 12 months. The examples listed include “travel disruption” (as opposed to border closures), being advised to work / study remotely or even just “being 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”.

Category 2: Planned absence of up to 6 months exceeded due to coronavirus

Category 2 is where someone did not intend to be outside the UK for more than 6 months but ended up remaining away for up to 12 months for “any coronavirus related” reason. Examples of acceptable coronavirus-related reasons are the same as those in Category 1 but my preliminary understanding of the distinction – subject to seeing the final wording of the Immigration Rules – is such absences will not be treated as a “single” permitted absence for an “important reason” in the 5-year period provided you can show it was your intention to return within 6 months but you were then kept outside the country due to coronavirus.

Category 3: Absence of more than 12 months where prevented from / advised against return

Category 3 covers cases where someone was outside the country for an “important reason” (e.g. childbirth, study, coronavirus) but who did not return to the UK within 12 months because they were “prevented from” or “advised against” returning. The examples here are narrower than those covered by Categories 1 and 2 – they include being ill, caring for a family member affected by coronavirus, travel disruption or being advised by an employer or university not to return to the UK. This category does not cover the more general coronavirus-related preferences permitted under the first two categories.

Importantly, any time outside the UK in excess of the 12 months will not count towards the 5 years needed to upgrade to settled status.

For example, Caterina moved to the UK and got her pre-settled status on 1 August 2016. On 1 May 2019, she started maternity leave and travelled to Italy to give birth. She had planned to return to the UK on 30 April 2020 but was unable to travel due to border closures. She ended up staying in Italy until 1 August 2020, meaning a total absence from the UK of 15 months. The first 12 months outside the UK will still count towards the 5 years of “UK residence” but the additional 3 months will not. This means that instead of qualifying for settled status on 1 August 2021, she will have to wait an extra three months until 1 November 2021. She will be able to renew her pre-settled status in August 2021 to get her up to November 2021.

Category 4: Two absences for an important reason, one of which due to coronavirus

Category 4 is where someone has already had a single absence of up to 12 months for an “important reason” and must now spend a further 6-12 month period outside the UK. At least one of the absences must be for a coronavirus-reason and either may exceed 12 months in total if they also fall within Category 3 above (i.e. where someone was prevented from or advised against returning to the UK due to coronavirus). And as with Category 3, any period of time outside the UK in excess of 12 months will not count towards the 5 years needed to upgrade to settled status.

Additionally, when looking at the second absence, only the first 6 months will count towards the 5 years of UK residence.

In all cases, the Home Office will of course expect to see clear records and evidence of reasons for the absences. In cases where the absence was due to a preference, presumably a letter from the applicant explaining the reasons will be enough.

Although the guidance could be worded more clearly, this will hopefully be dealt with by the concession’s incorporation into the Immigration Rules in the near future. More importantly, this will make a huge difference to hundreds of people who would have had to restart their 5 years’ UK residence from scratch or who in some cases thought they had permanently lost the opportunity to build a life for themselves in the UK.

The above is correct as at 21 June 2021. The information above may be subject to change as this is a constantly evolving situation.

The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.

Category: Blog | Date: 24th Jun 2021

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