1. Pre-settled status
When an EEA and Swiss national and their family members are granted Pre-Settled status, they will have the right to live and work in the UK for 5 years. They will retain pre-settled status if they are absent from the UK up to 2 years; more than 2 years and the pre-settled status is lost. On the surface, this does seem to be very generous. However, it is very important for Pre-settled status holders to be aware that there are circumstances where they may retain their pre-settled status, but lose their eligibility to apply for settled status in the future. In addition, there are circumstances where pre-settled status can be lost altogether:
Before considering circumstances of when pre-settled status can be lost, consideration is required whether the relevant EEA national and family member meet the suitability requirement under Appendix EU. The assessment of suitability must be conducted on a case by case basis and be based on the applicant’s personal conduct and circumstances in the UK and overseas. There is no requirement to declare spent offences, cautions or alternatives to prosecution for example fixed penalty notices for speeding. However, it is always good policy to be open and honest in any application to the Home Office.
- Absences of more than 6 months but less than 12 months:
For a relevant EEA national and their family members to become eligible for settled status, they must have acquired 5 years of continuous residence. Being absent from the UK for more than 6 months in any given 12 month period of the 5 years will break the 5 years continuous residence. There are some exceptions where an absence of more than 6 months (but does not exceed 12 months) will be permitted. Examples are given at page 137 of the EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members - Version 10.0.
The Home Office clarified the position whether absence from the UK due to the coronavirus will fall under an exception. In summary, co-vid related absences of more than 6months but less than 12 months will not break continuous residence in the following situations:
- A single absence because the relevant EEA national was unable to return to the UK due to contracting the virus or was in quarantine
- A single absence where a student who was studying in the UK and now studying outside the UK because of the coronavirus
Absences over 12 months or over 6 months which the exceptions do not apply means that the continuous period of 5 years is broken. In these circumstances, only pre-settled status holders who return to the UK before 31 December 2020 can extend their pre-settled status and apply for settled status in the future. Those who return to the UK after 31 December 2020, must apply for lawful leave under a different category or leave the UK.
Imprisonment only includes physical incarceration and not suspended sentences. A continuous qualifying period is broken where the person served or is serving a sentence of imprisonment of any length in the UK. If the length of imprisonment is more than 2 years, the pre-settled status holder could also lose their status entirely. The residence will restart upon release and this will also break and restarts the continuous period that their family members intend to rely on.
A continuous qualifying period is also broken in the following ways (unless is has been set aside):
Absent from the UK for more than 5 consecutive years (applies to settled status holders only);
An exclusion decision or order; or
A deportation order.
2. Settled status
Having Settled status (previous permanent residence holders under the EEA Regulations 2016 or pre-settled status issued with settled status after acquiring 5 years of residence) means that there are fewer ways to lose your status:
A settled status holder may be absent for any length of time up to 5 years before they lose their settled status.
ii. Cancellation, curtailment and revocation of status (also applies to pre-settled status holders):
- Where it is justified on grounds of public policy, public security or public health in accordance to the EEA Regulations 2016;
- Where it is justified on the ground that it is conducive to the public good, on the basis of the person's conduct committed after the "specified date";
- Where the applicant has provided false or misleading information/representations/documents which was material to the decision to grant the applicant status under Appendix EU;
- Curtailment will also be justified on grounds if at a later date, there is evidence of a marriage of convenience had taken place or then the status holder no longer meets the requirements of Appendix EU.
The key take away is that Pre-settled status holders should keep a close eye on the number of days they have been absent from the UK. Particularly, those who arrive in the UK during the grace period (1 January 2021 – 30 June 2021). Those who arrived during the grace period and has an absence of more than 6 months but less than 12 months which does not fall under the exception or an important reason, they cannot extend their pre-settled status once it expires. Before their status expires, they will need to either apply to extend their stay under a different immigration category or leave the UK.