An inadvertent break of this ‘continuous period’ can have significant consequences on one’s eligibility to apply for settlement under the EU Settlement scheme, so having a clear understanding of the requirements is critical.
Starting point: Pre-Settled Status
Pre-Settled Status (PSS) is granted to those who apply under the EU Settlement Scheme who have resided in the UK prior to the end of the Brexit Transition Period (31 December 2020) for less than five years continuously.
PSS grants the holder permission to reside in the UK for a period of five years. It is expected that at the end of this five-year period the holder will have completed the five-year continuous period of residency in the UK in order to be eligible for Settled Status.
Next step: Five-year continuous period
The five-year continuous period is defined as being a period of residence that began before 31 December 2020 and which has not been broken by any of the following:
- Absence from the UK exceeding a total of six months in any 12-month period;
- A prison sentence;
- Generally, a removal, exclusion or deportation order.
The first bullet point can be a source of confusion. Six months in any 12-month period means that in any 12-month period during one’s grant of PSS, if they have accumulated absences from the UK totalling 6 months within this period, the period of continuous residency will be broken.
It is worth noting that the Home Office defines a month as 30 days, and, therefore, six months in UK immigration terms equals 180 days.
Final step: Remedies for breaking one’s continuous period
There are two scenarios for those who have broken their continuous period in the UK. One allows for the individual to ‘reset the clock’ and reapply for pre-settled status, the other does not.
Applicants who broke the continuity of their residence but returned before 31 December 2020
One who attained PSS, then spent more than 180 days outside of the UK in any 12-month period, and after this period returned to the UK prior to 31 December 2020 (end of the Brexit transition period), will be able to reapply for PSS before the end of their current PSS.
For example, one is granted PSS on 1 March 2019. If this person leaves the UK on 4 March 2019 and does not return to the UK until 4 October 2019, they will have broken their period of continuous residency as it counts towards an eventual Settled Status application.
However, as this break in the continuous period took place prior to 31 December 2020, and this person returned to the UK prior to 31 December 2020, they may, at any point before the expiry of their current pre-settled status, apply for a further grant of PSS and, therefore, reset their five-year continuous period.
Applicants who break the continuity of their residence and return after 31 December 2020
Those who break their period of continuous residency (spend more than 180 days outside of the UK in any 12-month period) and return to the UK after the 31 December 2020 are not eligible to reapply for PSS and are unable to ‘restart the clock’ on their period of continuous residency. Their status in the UK will expire with their existing grant of PSS.
In this situation, the five-year continuous period intended to be relied upon for a future application of Settled Status must be carefully examined, and it must be assessed if this break in the continuous period eliminates the ability for the person to apply for settled status.
Should this be the case, and the continuous period has been broken, then the person in question will most likely need to gain permission to remain in the UK under a different section of the UK immigration rules, or leave the UK.
Each case is specific, and many people may be in a position where they have completed a five-year continuous period of residency in the UK prior to the absence in question. Each case must be considered on its individual merits.
Exception to the rule
The Home Office allows for periods of absence for longer than 6 months (180 days) in very particular circumstances, such as periods of absence for compulsory military service, or Crown service posting. Additionally, a ‘single period of absence’ that does not exceed 12 months may be permitted should the absences be for what the Home Office deems to be an important reason. Such reasons include pregnancy, serious illness, vocational training, and overseas postings, to name a few examples. The Home Office have recently clarified that absences due to Covid-19-related reasons will be considered an ‘important reason’ for these purposes.
This list is not exhaustive and specific scrutiny must be given to one’s reason for absences, to determine if an exception may be possible.
Conclusion
The continuous period of residency is important to those who wish to become eligible to apply for settled status in the UK. For those who may not wish to acquire settled status, this rule has very little bearing, as one must spend a continuous period of 2 years outside of the UK in order to loose one’s PSS. The issue lies with an individual’s ability to ‘upgrade’ to settled status after holding PSS for five years when they do not fully understand the ‘absence requirement’.
For those who currently hold pre-settled status and wish to ‘upgrade’ to settled status once eligible, diligent care must be paid to one’s absences, and one must ensure that they do not break their continuous period residency in order to avoid ineligibility upon their future application for settled status.
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The information in these blogs 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 these blogs. 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.
©Gherson 2021