Is Covid-19 an important reason to be away from the UK for a long period – how does continuous qualifying residence work?
As long as you move to the UK before the end of the transition period on 31 December 2020 you can begin a continuous qualifying period (also known as continuous residence), which is what you need to apply to the EU settlement scheme. The date you move to the UK is the date your continuous residence begins (try to keep evidence of your travel into the UK if you can). You can apply for pre-settled status as soon as you begin your continuous residence – though you will need evidence to show you have physically arrived in the UK. In most cases you need to have 5 years continuous residence to apply for settled status. Citizens who will not have years continuous residence before 30 June 2021, must apply for pre-settled status first and then apply for settled status once they pass the 5 years continuous residence point.
In addition to the need to move to the UK before 31 December 2020, once you are living in the UK you need to comply with the continuous residence conditions. The general rule that you need to remember is to maintain your continuous residence, you cannot spend more than 6 months outside of the UK in a 12-month period. If you do you will break your continuous residence; this can happen with either a single absence that exceeds 6 months or, by adding up multiple absences that together exceeds 6 months if they all take place within a 12-month period (for example, a trip of 3 months and a trip of 4 months in a 12 month period will add up to more than 6 moths and break continuous residence). It is also important to be aware that the Home Office calculates the 6 month rule on a rolling basis which means that if you have a trip of 3 months at the end of 2019 and a trip of 4 months at the beginning of 2020 these will still be in the same 12 month period even though the trips are in different calendar years.
There is one exception to the above rule which is that in your 5 year continuous residence period, you are allowed one period of time outside of the UK which is longer than six months as long as it does not exceed 12 months and is for a ‘important reason’. Important reasons are listed as:
- serious illness
- vocational training
- overseas posting
Any absence from the UK because of military service or crown service did not break your qualifying residence even if it means being away for over 12 months.
Is Covid-19 an important reason to be outside the UK for more than 6 months?
The below text is taken from a letter sent by the Home Office to the Brexit Civil Society Alliance on 30 July 2020:
“In respect of breaks in continuous residence caused by the COVID-19 pandemic, the Government recognises travel plans have been, and continue to be, severely disrupted by COVID-19. In order to qualify for either pre-settled status or settled status under the scheme an applicant must be able to evidence that they have not broken their continuity of residence by exceeding an absence (or absences) from the UK of up to six months in and 12 month period or a single absence of up to 12 months in the 5 year continuous qualifying period, this is in line with EU law and is in accordance with the Withdrawal Agreement. Continuity of residence by EEA and Swiss citizens applying to the scheme and who may have been stuck overseas as a result of COVID-19 is one of a number of issues the Home Office is working through. We are taking a pragmatic approach to ensure individuals are not penalised for issues arising from the COVID-19 pandemic.”
The indication from the letter is that Covid-19 could be considered an important reason to be outside the UK for more than 6 months but less than 12 months. However, it should not be assumed in every single situation it will be acceptable – you will see that the letter talks mainly about problems with travel and being stuck outside the UK. At the moment there is no published policy from the Home Office about whether taking care of family or choosing to work or study outside of the UK in a country with a lower infection rate will be seen as acceptable reasons. If you are unsure of your situation it is a good idea to talk to a qualified advisor.
Please be aware that Covid-19 is not a reason to stay out of the UK for more than 12 months under any circumstances and so for those who have been away for more than six months, you must return before 12 months.
I have pre-settled status but I have been working, studying or living outside the UK because of Covid-19
If you have been granted pre-settled status then you must comply with the conditions of continuous residence that have been set out above. If you have exceeded 6 months outside of the UK you should also consider the above information about whether the Home Office will accept Covid-19 as an important reason for you to be outside the UK for up to 12 months.
If you are in any doubt about your situation then the safest option is to move back to the UK before 31 December 2020. The reason for this is so that in the worst-case situation, you will have begun a new continuous residence period before the end of the transition period. You must apply for a new period of pre-settled status once you have moved back. The Home Office will grant you a second period of pre-settled status even if you already hold the status. You can use the same identity document to apply for a second grant of pre-settled status – you should complete the application in the same way you did the first time.
Even though you will be granted a second period of pre-settled status you can still apply for settled status based on your first entry to the UK if you meet the continuous residence conditions for 5 years. The reason to apply for a second period of pre-settled status is as a safety net.
I not applied for pre-settled status yet and I am currently outside the UK because of Covid-19
If you have not lived in the UK before then you cannot apply for pre-settled status and you will need to move to the UK before 31 December 2020 in order to be eligible under the EU settlement scheme.
If you have lived in the UK before then you may be able to use the overseas application process if you are able to download the Home Office ID scanning App which allows need to send your identity information to the Home Office as long as you have a valid biometric passport or valid biometric national ID card.
As a general rule you will also need to prove you have been living in the UK in the last 6 months to be granted pre-settled status from overseas. If you have been outside the UK for longer than this then the Home Office may refuse to grant you pre-settled status. Even if you are granted pre-settled status overseas, it is very important to remember that you will break your continuous residence if you break the conditions explained above.