The EU Settlement Scheme was opened on the 30th March 2019 to enable EU, EEA, Swiss citizens and their family members to obtain status to remain in the UK following Brexit. The scheme provided ‘settled’ or ‘pre-settled’ status to those who were resident in the UK by the end of the transition period on 31st December 2020. These grants allow those who hold them to live and work in the UK either on an indefinite basis or a time-limited basis.
The Home Office granted pre-settled status to those who were resident in the UK for less than 5-years at the end of the transition period. Those who hold pre-settled status will be automatically converted to settled status once they become eligible for it from January 2025.
Eligibility Requirements for Settled Status
To become eligible for ‘settled status’, you must have 5 years of continuous, unbroken residence in the UK. Continuous residence will be broken if an individual spends more than 180 days in any 12-month period outside the UK. Before 21st May 2024, those with pre-settled status would also lose their status if they spent more than 2 years outside the UK. However, this was changed to 5 years, bringing pre-settled status holders in line with those who hold settled status.
Although the total amount of time that can be spent outside the UK before status under the EUSS lapses has increased for those who hold pre-settled status, applicants who wish to have their status converted to settled status should pay close attention to their absences outside the UK.
The implications of breaking the continuous residence requirement
Those with pre-settled status who have broken their continuous residence by spending more than 6 months outside the UK run the risk of having their status cancelled or curtailed. The Home Office has confirmed that pre-settled status can be cancelled or curtailed where the holder no longer satisfies or has never satisfied the conditions.
In January 2025, the Home Office confirmed that they are considering the appropriate next steps in those cases where continuous residence has been broken. Those who fall under this category will be identified via government-held information (i.e. HMRC records and border data) as the Home Office checks and automatically grants settled status to those eligible.
Absence exemptions
There are some exceptions to the 6-months in any 12-month rule. If the absence is for an ‘important reason’, a single absence of up to 12 months is allowed. Examples for an ‘important reason’ are pregnancy, serious illness, study or posting to an overseas entity. There are also concessions for those who were unable to travel back to the UK due to Covid-19.
What should employers be aware of?
Although there has been no confirmation from the Home Office on their plans for pre-settled status holders who cease to qualify under the scheme, those who cease to qualify potentially run the risk of losing their right to work and live in the UK.
Employers should check with employees who are coming to the end of their pre-settled status to confirm their eligibility for the settled status and conduct another Right to Work check to remain compliant with their sponsor duties.
If the employee is granted settled status, employers should conduct a new Right to Work check on the employee’s new status to continue to establish a statutory excuse.
For those employees who have ceased to qualify under the rules, alternative visa options should be explored if they are to remain in the UK. Alternative routes include sponsored visas such as the Skilled Worker visa.
For more information regarding sponsorship options or the EU Settlement Scheme, please reach out to Migrate UK via info@migrate-uk.com or 01235 645800.