Application for settled status on behalf of a Spanish national

We acted on behalf of a European National in her application for settled status under Appendix EU of the Immigration Rules. The Applicant was a Spanish national who has been residing in the UK since 2017 and was granted pre-settled status in the UK.

We assisted her in making an application to switch to settled status on the basis that as of September 2023, she completed a continuous qualifying period of residence in the UK of five years as a relevant EA citizen. Under Rule EU11 of Appendix EU, the Applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EA citizen or family member, where the Secretary of State is satisfied that at the date of the application one of the conditions 1-7 is satisfied. Namely that the Applicant is a relevant EA citizen and has completed a continuous qualifying period of five years in any combination of the categories listed in Condition 3 and 4 EU11. A further requirement is that no supervening event has occurred, namely that the person has not been absent from the UK for a period of more than five consecutive years and that none of the specific events occurred such as a decision to exclude or remove from the UK, deportation order, exclusion order etc.

The challenge in this case was that the Applicant had had one period of absence exceeding six months during the qualifying period of 2020. In principle, a person will have their period of continuous residence broken if they have been absent from the UK for more than six months in any calendar year. The Applicant was in Spain to give birth during COVID lockdown and there were travel restrictions in place at the time which fall to be considered under the COVID-19 exception. We argued that this was a single period of absence of more than six months, but which does not exceed 12 months and therefore is permitted where it is for an important reason such as because of COVID-19 or childbirth.

Page 159-160 of the Home Office Guidance on the EU settlement scheme published on 16 January 2024 confirmed that a single period of absence of more than six months (which does not exceed 12 months) is permitted, where this is for an important reason such as pregnancy, childbirth, serious illness, study, vocational training or overseas posting. It also confirms that a single period of absence of more than six months (which does not exceed 12 months) is permitted where the absence was not originally for an important reason, but it is to be treated as being for an important reason as it exceeded six months because of COVID-19.

The guidance further confirms on page 165 that the Applicant will need to provide evidence of the length and reason for any absence relating to COVID-19 on which they rely. The list provided is not an exhaustive list and each case must be considered on a case-by-case study basis. We provided evidence of childbirth and also evidence of the COVID-19 and the restrictions on travel. We successfully argued that the Applicant completed her continuous qualifying period of five years in the UK in September 2023 and therefore has not been absent from the UK for a period of more than five consecutive years since completing this period and no other supervening event, as listed above, has occurred completing the five-year period.

Summary

This particular case is important because many EU citizens have been forced to leave the UK for an extended period due to the pandemic. Such absences did not really matter to anyone who had settled status, as they had already completed the five years continuous qualifying period. They were therefore entitled to leave the UK for up to five years without the right to live in the UK lapsing.

However, absences from the UK can be important to those with less than five years of residence. If they are absent from the UK for more than six months, then they have lost the right to upgrade to settled status. If they returned to the UK before 31 December 2020, their continuous qualifying period of five years needed for settled status would be broken by the absence, so they need to start a new qualifying period and wait a full five years before being able to upgrade to settled status. That is why the exceptions are so important.

The first exception is the exception to the six-month rule which means that the single period of absence of more than six months, but which does not exceed 12 months is permitted where it is for an important reason. The non-exhaustive examples of important reasons are listed in Appendix EU.

You can rely also on any Coronavirus related reasons as an important reason. This means that if you have a pre-settled status and spent eight months of the pandemic outside the UK, this absence should not break your continuous qualifying period. However, you will need to demonstrate the reasons for this absence.

There is also a section of the Guidance covering people who have two absences of more than six months, Again normally these would break continuous residence because Appendix EU only allows for a single period of absence to be excused by an important reason but the Guidance says that the Home Office will in practice allow you a second period of absence between six to 12 months if it was due to COVID-19. The time of six months during the second period of absence will not count towards the five years that you will need to qualify for settled status though.

If you have a single absence for longer than 12 months, you can still involve Coronavirus as an excuse and you will need to show again that you were prevented from or advised against returning to the UK within 12 months because of the Coronavirus.

Any period of absence beyond the 12 months will not count towards the five years you need to qualify for settled status. The continuous qualifying period will be paused from the point of absence for each 12 months and will resume from the point you return to the UK.