The EU Settlement Scheme (EUSS) has been a critical pathway for EU, EEA, and Swiss citizens living in the UK to secure their status post-Brexit. While many have successfully achieved settled or pre-settled status, a growing concern among beneficiaries is how lengthy absences from the UK might impact their status.
A recent change that came into force on 21 May 2024, ensures that individuals with pre-settled status will not automatically lose their status after being abroad for two years. The duration has been extended to match that of settled status holders: generally five years, or for Swiss nationals and their family members, four years. Here, we explore the implications and offer guidance for those seeking to protect their residency rights.
Understanding the Basics: Settled vs. Pre-Settled Status
Settled Status: Granted to those who have lived in the UK for a continuous five-year period, allowing indefinite stay.
Pre-Settled Status: For those who have not yet reached the five-year threshold, providing the right to stay for an additional five years, with the possibility of upgrading to settled status once the five-year residence requirement is met.
The Continuous Residence Requirement
A key aspect of maintaining both pre-settled and settled status is the concept of “continuous residence.” Continuous residence is defined as living in the UK for at least six months in any 12-month period.
However, the key issue is the interpretation of the “12-month period.” While the Home Office does not take one calendar year to be 12 months but rather on a rolling basis, this resets the continuous residence period with every trip. The EU has a different interpretation however, and it is plausible that the Home Office might follow suit. This uncertainty puts the applicants in limbo, and it is imperative to maintain an accurate up-to-date record of absences.
Absences and Their Implications
Pre-Settled Status Holders:
- Single Absence: An absence of up to six months in a 12-month period is permitted without affecting continuous residence.
- Exceptional Circumstances: One longer absence of up to 12 months is allowed for an important reason such as pregnancy, serious illness, study, vocational training, or an overseas work posting.
- Impact of Longer Absences: Absences exceeding these limits will break continuous residence, potentially jeopardizing the chance to obtain settled status.
Settled Status Holders:
- Permissible Absences: A single period of absence up to five years (or up to four years for Swiss citizens and their family members) is allowed without losing settled status.
- Impact of Extended Absences: Absences beyond these periods will result in the loss of settled status.
Practical Scenarios and Guidance
1. Career Opportunities Abroad:
- Pre-Settled: If your work requires extended periods abroad, ensure they do not cumulatively exceed the permissible limits. Consider returning periodically to maintain continuous residence.
- Settled: While more flexibility exists, ensure any absence does not exceed five continuous years.
2. Family and Personal Commitments:
- Both pre-settled and settled status holders must carefully track their absences due to family commitments abroad. An unanticipated long stay could inadvertently risk their status.
3. Higher Education and Training:
- For those pursuing education or training outside the UK, one long absence for this reason is acceptable for pre-settled status holders, but subsequent absences must be managed carefully.
Practical Tips for Maintaining Status
- Keep Detailed Records: Maintain a log of all trips outside the UK, noting dates and reasons for absences.
- Seek Legal Advice: If planning an extended stay abroad, consult with immigration experts to understand the potential risks and explore solutions.
- Regular Check-Ins: Even during extended absences, consider returning to the UK periodically to reset the continuous residence clock.
- Stay Informed: Immigration rules can evolve, staying updated on any changes is important to ensure compliance.
Lengthy absences from the UK can significantly impact the EU settled status of individuals. While the rules offer some flexibility, it is imperative for pre-settled and settled status holders to manage their absences meticulously to safeguard their residency rights. By understanding the requirements and seeking appropriate advice, you can navigate these complexities and maintain your status in the UK.
For personalised advice, tailored to your unique situation, the Gherson immigration team can help. Contact us today to ensure your residency status remains secure.
How Gherson can assist
Gherson’s Immigration Team are highly experienced in advising on EUSS matters. If you have any questions arising from this blog, please do not hesitate to contact us for advice, or send us an e-mail. Don’t forget to follow us on X, Facebook, Instagram, or LinkedIn 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 do not 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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