One example is how applicants applying for Settled Status should deal with having excessive absences from the UK, often caused as a direct result of COVID-19 (i.e. they became stranded abroad and could not return to the UK due to travel and entry restrictions).
Section EU11(3)(b) of Appendix EU of the Immigration Rules requires an applicant who wishes to apply for Settled Status to have completed a 5-year “continuous qualifying period” of residence. Annex 1 of the same Appendix defines “continuous qualifying period” as having not “exceeded a total of six months [absence] in any 12-month period”. An applicant with excessive absences from the UK, amounting to more than six months in a 12-month period, would therefore not be able to satisfy this requirement.
Whilst the UK Government have suggested a flexible approach will be taken in respect of absences incurred due to COVID-19, it is not clear how this flexibility will be applied, and it is therefore important to understand the options available.
As the law stands at the time of writing, it is not possible to extend Pre-Settled Status under the EU Settlement Scheme. This means an applicant either needs to apply for Settled Status once they have completed the required period of residence, or they may need to switch into a different category under the Immigration Rules.
For those applicants hoping to apply for Settled Status but who have incurred excess absences as a result of the pandemic, there are essentially two strategies available to them.
1. Use the “Important Reason” exception under Annex 1 “Continuous Qualifying Period” (subsection (aa))
The definition of Continuous Qualifying Period allows applicants to exceed the aforementioned threshold by way of a single period of absence, which did not exceed 12 months and which was due to an important reason (such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting). The Home Office COVID-19 EU Settlement Scheme Guidance indicates that self-isolating (subject to further rules) and “being prevented from travelling due to coronavirus” both count as ‘important reasons’, if the applicant can provide supporting evidence. However, it would appear that if an applicant decided it was not worth the risk of travelling or it was inconvenient to travel due to the pandemic, they may not satisfy the “important reason” threshold as it would be unlikely that they would be in a position to provide sufficient evidence. Additionally, the limit is set at 12 months and the Rules only allow for a “single period of absence”, which means that any absences over 12 months and/or multiple absences are unlikely to qualify under this exception, even if they were for an important reason such as COVID-19.
Where possible, it is suggested that advice is sought prior to incurring excess absence due to an ‘important reason’, to ensure the reason for travel meets the relevant threshold.
2. Reset the Clock
If you currently hold Pre-Settled Status and have broken your continuous residence (by incurring excess absences), there may be a way to ‘reset the clock’ so that you can commence a fresh 5-year period of residence. This option depends on an individual’s specific circumstances and we advise seeking advice before pursuing this route.
Provided an applicant had returned to the UK before 31 December 2020 and they still satisfy all other requirements, they may be able to make a second application for Pre-Settled Status, even if they already currently hold Pre-Settled Status. The effect of making a second application for Pre-Settled Status is that they would reset their ‘5-year clock’ and they would be issued Pre-Settled Status for a new 5-year period (from the date the application is granted). They could then ensure that moving forward absences did not exceed the prescribed limits and may then be able to apply for Settled Status once they complete a fresh 5-year continuous period of residence.
It is our understanding that such an application must be made prior to 30 June 2021 and that the position is the same for non-EU nationals provided they satisfy all other relevant requirements.
Gherson has a wealth of experience advising clients applying under the EU Settlement Scheme. If you have any questions or doubts regarding your immigration matters, please contact us for advice and to discuss your specific circumstances, send us an e-mail, or alternatively, follow us on Twitter to stay up-to-date.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
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