I have Pre-Settled Status and have been outside of the UK for more than 2 years, can I get Settled Status?

Pre-Settled Status and Settled Status are two types of immigration statuses under the EU Settlement Scheme, available to EU nationals and their family members who were living in the UK before 31 December 2020.

Pre-Settled Status is a precursor to Settled Status. Pre-Settled Status is valid only for 5 years and it allows EU nationals/their family members to live in the UK for 5 years. The idea is that once they have lived in the UK for 5 continuous years, they can then upgrade their Pre-Settled Status to Settled Status, which allows them to live in the UK indefinitely.

If you hold Pre-Settled Status but have been away from the UK for more than 2 years, you may have the following questions:

Can I still upgrade to Settled Status?

To apply for Settled Status, generally you need to have lived in the UK for 5 continuous years. During those 5 years, you cannot have been absent from the UK more than 6 months in any 12-month period (calculated on a rolling basis). This is known as the continuous residence requirement. In many other categories of visas (e.g. the Skilled Worker visa), where you cannot meet the continuous residence requirement, you can extend your visa (provided you qualify) until you qualify for Indefinite Leave to Remain (the equivalent of Settled Status). Unfortunately, that is not possible for Pre-Settled Status holders as it is non-extendable. Those who do not qualify to upgrade to Settled Status when their Pre-Settled Status expires will need to switch onto a different UK immigration route if they wish to stay in the UK.

What if my absence from the UK was for reasons beyond my control?

The Home Office can, in certain limited cases, exercise discretion for a single period of absence up to 12 months for an important reason, including COVID-19. Where that is applicable, you should seek legal advice and be prepared to fully evidence those important reason(s).

What if my combined absences exceed 2 years across the 5 years of Pre-Settled Status?

If your absences added up together exceed 2 years, then as long as those absences do not breach the above-mentioned continuous residence requirement, you may still be able to qualify for Settled Status. The calculation for the continuous residence requirement is done on a rolling basis and can be difficult to work out. We would advise that you do not spend excessive amounts of time abroad while you hold Pre-Settled Status.

What if I have been absent for 2 years or more in one block?

Generally, where you have been away from the UK for more than 2 consecutive years, Pre-settled Status will lapse and it cannot be recovered. This means that you will not be able to enter the UK as someone with residence rights. That being said, even if you have not been absent for 2 years consecutively, but have breached the continuous residence requirement so as to make yourself not eligible for Settled Status, the Home Office technically has the power to curtail your Pre-Settled Status. It should be noted that having absences is not the only reason the Home Office can curtail Pre-Settled Status. Other reasons can include criminality, breach of immigration conditions, and deception.

How Gherson can assist

Gherson’s Immigration Team are highly experienced in advising on UK visa matters. If you have any questions arising from this blog, please do not hesitate to contact us for advice, send us an e-mail, or, alternatively, follow us on Twitter, Facebook, 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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