How does absence from the UK work under the EU settlement scheme?

Under the EU Settlement Scheme, an EU/EEA/Swiss citizen or their family members, or in some cases former family members, are either granted pre-settled status for five years (as limited leave) or settled status as permanent residence (as indefinite leave). In this article we’ll refer to EU/EEA/Swiss citizens as EU citizens.

In most cases, a person is granted pre-settled status where they have less than five years of continuous residence in the UK. A person with five years or more is granted settled status. There are limited situations where settled status is granted with less than five years of continuous UK residence, such as children under 21 whose sponsoring parent has settled status and what are known as ceased activity cases.

This article will focus on the most common types of cases where a person must complete five years of continuous residence to qualify for settled status. We’ll be looking at how absences from the UK impact a person’s status under the EU Settlement Scheme.

Continuous residence

When you look at the meaning of continuous UK residence, there are two conditions EU citizens must satisfy:

• You must have been resident in the UK by 31 December 2020 at the latest; and
• After you started your UK residence period you must maintain continuous residence for five years (you can complete this continuous residence period before 31 December 2020).

These two conditions are set out in Annex 1 of Appendix EU, under the heading “continuous qualifying period”.

Sponsored joining family members can begin a continuous UK residence period at any time and so are not bound by the first bullet point. However, they must be sponsored by an EU citizen who meets both the above conditions and has been granted status under the Scheme accordingly. There are limited exceptions in some cases, for example Irish citizens, immigration exempt persons and qualifying British national sponsors do not need to hold status under the EU settlement Scheme. Once the joining family member moves to the UK, they are bound by the continuous residence rules for five years.

Appendix EU at paragraph EU11 condition 3 states that once a person has completed a continuous qualifying period for five years, they should be granted settled status. Conversely, paragraph EU11 condition 1 states a person should be granted pre-settled status “solely because they have completed a continuous qualifying period of less than five years”.

Once a person with pre-settled status has a continuous qualifying period of five years, they can apply to upgrade to settled status under EU11 condition 3. Alternatively, since January 2025 the Home Office can upgrade them without an application.

As there is still the possibility of making a late application if the applicant can show good reason for missing the application deadline, valid late applications will be granted pre-settled or settled status based on the length of continuous residence evidenced.

Understanding the rules on maintaining continuous residence during the continuous qualifying period informs our understanding of what absences from the UK are permitted during the five years a person is building up qualifying time for settled status. The consequences of breaking continuous residence are considered in the final section of this article.

Once a person has completed a continuous qualifying period of five years, they are no longer required to maintain continuous residence and instead, get a more generous allowance to spend time outside the UK. The conditions of this allowance are more straightforward to understand and are set out below.

Maintaining continuous residence as originally envisaged

The EU Settlement Scheme is implementing the Withdrawal Agreement. As such, most of the continuous residence rules set out in the continuous qualifying period definition are lifted directly from Article 16 of the Citizens Rights Directive (the Directive). These conditions state that as a general rule, to maintain continuous residence a person must spend at least six months out of every 12-month period in the UK during the five-year continuous qualifying period.

Note there is a difference in how to assess compliance with this rule. The EU Settlement Scheme bases its assessment on rolling 12 month periods whereas, the Directive uses demarcated 12 month periods starting on the same date each year (based on the date of arrival in the host state).

In most cases it is unlikely that the difference in interpretation will lead to a different outcome in terms of breaking continuous residence. However it is possible and so it’s worth bearing in mind given the direct effect of the Withdrawal Agreement as this could be relied upon in an EU Settlement Scheme appeal.

Based on this rule, in principle a person can spend up to two and a half years out of their five-year continuous qualifying period outside the UK and maintain continuous residence (as long as the absences are spaced out so that no more than six months are spent outside the UK in a 12 month period). Absences that fall within this rule do not require justification and so can be for any reason.

Absences for an important reason

There is also one exception to the residence rule of allowing up to six months outside the UK in a 12 month period; a person can have a single extended absence up to 12 months within the five year qualifying period for an “important reason”.  Important reasons are not exhaustively defined by the Appendix EU rules. Examples given – closely mirroring the Directive – are pregnancy and childbirth, serious illness, study or vocational training, or an overseas posting.

Ultimately, it is up to the person to make the case that an extended absence was for an important reason. Generally, they will be expected to provide evidence to support their justification for having the extended absence. For example, evidence could be proof of studying abroad, a letter from an employer confirming an overseas posting, or evidence from medical professionals for medical treatment (which could be for the person’s family members).

An absence for an important reason is in addition to the normal six month allowance, and so when calculating absences you disregard the absence for an important reason when looking at the standard six month in 12 month allowance.

These continuous residence rules are covered by the Withdrawal Agreement which of course, was signed before Covid-19 pandemic. As a result of the unprecedented turmoil caused by the Covid-19 pandemic from March 2020 onwards, the Home Office pragmatically amended the EU Settlement Scheme rules to account for absences from the UK – unforeseen and undesired in many cases – which may fall outside of the above continuous residence conditions.

Covid-19 and the pandemic

The continuous qualifying period definition specifically refers to absences relating to Covid-19, with guidance providing a more straightforward explanation of how the rules should be applied. Absences of up to 12 months for an important reason as described above, also cover absences related to Covid-19.

Non-exhaustive examples given in the guidance include: being ill with Covid-19, caring for family who were ill, being unable to travel back to the UK for practical reasons such as border closures, embassy delays, flight cancellations, or having to comply with pandemic restrictions etc. Importantly, there is a sort of general exemption in the guidance which allows for someone to declare that they made a personal choice to stay outside the UK because of the pandemic (i.e. they were not actually prevented from returning to the UK but choose not to).

As such it would be rare that an absence of up 12 months related to the pandemic breaks continuous residence. There is no need for the person to have originally left the UK due to the pandemic and so, someone who was outside the UK on holiday for example (i.e. within the normal 6-month allowance) but was then prevented from returning by the pandemic (or choose not return immediately), would be covered.

Unlike the approach taken under the Directive, the rules on Covid-19 absences do allow in some cases absences that exceed 12 months. However, it is important to be aware that the Home Office appears to require more justification for absences that exceed 12 months. This is expressed in the guidance as situations where “coronavirus meant you were prevented from, or advised against, returning to the UK earlier”. In other words, choosing to be outside the UK because of the pandemic may not be sufficient to justify an absence that exceeds 12 months.

Although there may be stronger justification needed for an absence that exceeded 12 months, the Home Office should always be mindful and considerate of the unprecedented impact of the pandemic. So the most important thing is that the applicant explains in detail their reasons for not returning to the UK sooner. This should be backed up with objective evidence wherever possible, for example with medical evidence, or advice from an employer or university about returning.

Acceptable Covid-19 absences mean that continuous residence was not broken. However, note that any time spent outside the UK beyond 12 months does not count towards the five year continuous qualifying period. Effectively, the continuous residence clock is paused at 12 months abroad and re-starts once the person returns to the UK. So for example, if your Covid-19 absence was 18 months, your five year continuous qualifying period will extend to five and a half years to account for the extra six months spent outside the UK after the permitted 12 months. In other words, months 13 to 18 of the 18 month absence must be ‘made up’ on return to the UK.

Two periods of extended absence in the continuous qualifying period

As it is possible that a person could have already had a single extended absence of up to 12 months for an important reason before Covid-19 (e.g. studying overseas), it would be inherently unfair if they we deemed to have broken continuous residence if they had a subsequent extended absence caused by the unforeseen pandemic.

Therefore, the EU Settlement Scheme rules allow for a person to have two extended absences, one not related to the pandemic (which cannot exceed 12 months), and one related to the pandemic (which can exceed 12 months as described above). It does not matter which order the absences occur in, and so someone whose first absence was caused by the pandemic, can then have a second extended absence of up to 12 months for a non-Covid-19 related reason. The Home Office policy in these situations is to require any time in the second extended absence over six months to be added to the continuous qualifying period.

For example, if you had a 12 month absence related to Covid-19 and then an 11 month absence for an overseas work posting, the last five months of your second absence (months 7 to 11) are added to your five year continuous qualifying period, giving you a total qualifying period of five years and five months. The person would need to provide evidence for both absences to show that continuous residence has not been broken.

Absences once you have settled status

Criminality, deception and deportation aside, the Withdrawal Agreement provides that permanent residence status, in this case settled status, is “only lost through absence from the host State for a period exceeding 5 consecutive years”.

Therefore, once a person has completed the five-year continuous qualifying period and is eligible for settled status, they can then spend up to five years in a row outside the UK. They do not have to be granted settled status to access this extended allowance if they have pre-settled status, as the triggering event is completing the five year continuous qualifying period not the grant of settled status (though as set out below, it is sensible to get a grant of settled status).

This five year allowance is more generous than the usual two years of absence afforded to non-EU Settlement Scheme indefinite leave holders and permanent residence holders under the Directive. The longer absence allowance before permanent residence status is lost is included in the Withdrawal Agreement as extra protection for EU citizens and family members who lost their free movement rights because of Brexit (i.e. if Withdrawal Agreement residence status is lost it cannot be regained). Swiss citizens and their family members can spend up to four years outside the UK without their status lapsing as per the Swiss Agreement.

There has been some speculation about how to interpret this five-year allowance in terms of how someone ensures they do not have an absence that exceeds five years. Some assistance can be derived from this Court of Justice of the EU (CJEU) decision, which found that under EU law permanent residence is retained as long as the holder returns to the host state within the specified time frame, even if they only return for a short period of time.

This case did not specifically address the Withdrawal Agreement, and therefore the EU Settlement Scheme, and additionally, post-transition period CJEU judgments are not directly enforceable in the UK. However, the UK does have to give CJEU decisions “due regard” under the Withdrawal Agreement and so, unless the UK has a good reason not to follow the CJEU decision, the reasoning should be applied in the context of the EU Settlement Scheme.

The Home Office appears to agree with this interpretation and has helpfully added to gov.uk the following information:

Spending time outside the UK if you have settled status

If you have settled status, you can spend up to 5 years in a row outside the UK, the Channel Islands or the Isle of Man without losing your status.

If you enter the UK for any amount of time during that 5 years, you’ll then be able to spend up to 5 more years outside the UK.

[emphasis added – the information confirms the same approach for the four year absence allowance for Swiss citizens and their family members]

Changes to Article 13 of The Immigration (Leave to Enter and Remain) Order 2000 effective from 21 May 2024 mean this four and five year absence allowance applies to pre-settled status holders as well as settled status holders. However, from a practical perspective it is more straightforward if the person is granted settled status, for example at the UK border. For this reason, it is recommended pre-settled status holders who have completed a five-year continuous qualifying period apply for settled status.

Alternatively, a pre-settled status holder with a five year continuous qualifying period can wait to be assessed for an automatic upgrade to settled status. However, the current approach is to begin the automation process close to the end of the existing pre-settled status grant, which could be some time away. Additionally, currently only pre-settled status holders with a full five years of National Insurance records can be automatically upgraded. So a pre-settled status holder who meet the conditions for settle status may be waiting some time for an automatic upgrade that never actually comes. In such a case, they would be better off making the free application for settled status.  

What happens if continuous residence has been broken?

The first thing to note is that automatic pre-settled to settled upgrade process does not draw a conclusion as to whether a person has broken continuous residence, as currently all the is being checked is whether a person has five years of National Insurance records. This check assesses whether the National Insurance number is / was active with HMRC or DWP for five continuous years.

Clearly there are many situations where someone will not have these records, such as children who only get a National Insurance number at 16 years which would likely not be active for several years, and persons who have not been working or claiming benefits for a continuous five year period. Where someone cannot be automatically upgraded to settled status due to insufficient National Insurance records, their pre-settled status is extended for five years. If they wish to apply for settled status with documents showing they have completed a five year continuous qualifying period, they can do so (and is recommended as set out above).

Valid late applications where continuous residence has been broken after 31 December 2020 will be refused status under the EU Settlement Scheme, as this was the last date to begin a continuous qualifying period unless applying as a joining family member.

There is possibly a complicated argument beyond the scope of this article that Article 18(1)(r) of the Withdrawal Agreement requires consideration of proportionality if a person who is otherwise in scope cannot meet the continuous residence rules (notwithstanding what the Court of Appeal said about proportionally in the residence status application process, as this case was about someone completely out of scope of the Withdrawal Agreement).

For pre-settled status holders who met the two conditions set out above but who have since broken continuous residence, the situation is currently unclear. A recent Home Office statement sets out that “pre-settled status can be cancelled or curtailed where the holder no longer satisfies, or has never satisfied, the conditions of residence set out in the Agreements” (for our purposes, has broken continuous residence).

This statement does not say pre-settled status “will be” cancelled or curtailed, just that it “can be”. What is missing from this statement is that residence status under the Withdrawal Agreement can only be removed where a person has ceased to meet the residence conditions, if it is proportionate to do so. In other words, breaking the continuous residence conditions alone is not sufficient for someone to lose the resident status, there needs to be an assessment of whether it is proportionate to take away their residence status based on their individual circumstances.

This Withdrawal Agreement position is reflected in Appendix EU at Annex 3:

A3.4. A person’s limited leave to enter or remain granted under this Appendix may be curtailed where the Secretary of State is satisfied that it is proportionate to curtail that leave where:

(c) The person ceases to meet, or never met, the requirements of this Appendix

So under the current operation of the EU Settlement Scheme rules, a pre-settled status holder who cannot show they have met the continuous residence conditions for a five year continuous qualifying period cannot be granted settled status. However, they also cannot have their pre-settled status taken away without the Home Office assessing whether it would be proportionate to remove their status.

The Home Office guidance on Cancellation and curtailment of permission currently does not cover removing pre-settled status in situations where it is concluded that continuous residence is broken and it is proportional to remove status. Therefore, right now pre-settled status holders who cannot qualify for settled status will be left with their pre-settled status (including extensions to pre-settled status), until the Home Office policy addresses how to assess the proportionality of removing status. Once this happens we will have a better understanding of the impact of not satisfying the continuous residence requirements.

For now it is clear that where the Home Office concludes that the continuous residence rules are note met, the pre-settled status holder must be afforded an opportunity to a) show that they have met the continuous residence requirements as per the rules described above, and b) argue that it would be disproportionate for them to have their pre-settle status removed, in situations where the continuous residence rules are not met. This includes the right to appeal against a Home Office decision that it would be proportionate to remove pre-settled status.

This post was originally by Charlotte Rubin and published in 2023. It has been updated and rewritten by Chris Benn so that it is correct as of the new date of publication shown.