On 10 June 2021, in response to a successful legal challenge by the Here for Good charity, the UK government published a revised policy on COVID related absences under the EUSS (EU Settlement Scheme).
The previous guidance published on 15 December 2020 only permitted a single absence of up to 12 months for an ‘important reason’ during the continuous qualifying period for those applying under the EUSS. It also covered circumstances where an EEA citizen could not return to the UK for a reason directly related to COVID-19.
Now that the transition period has ended, EEA citizens can no longer start a new qualifying period of residence where the continuous qualifying period has been broken.
The new policy provided by the Home Office operates as a concession outside the Immigration Rules which will enable more applicants to qualify for the EUSS.
The updated guidance on the EUSS absence policy provides some additional flexibility where an applicant has exceeded the maximum period of absence from the UK, currently permitted under the Immigration Rules, due to the pandemic.
In such circumstances the individual may remain eligible for a status under the EUSS.
COVID related absences under the EUSS
A non-exhaustive list has been provided by the Home Office to clarify what absences would be considered COVID related. This would involve circumstances where an EEA citizen has been:
- ill with COVID-19
- in quarantine, self-isolating or shielding in accordance with local public health guidance on COVID-19
- caring for a family member affected by COVID-19
- prevented from returning earlier to the UK due to travel disruption caused by COVID-19
- advised by their university that, due to COVID-19, their course was moved to remote learning and they were advised or allowed to return to their home country to study remotely
- advised by their university or employer not to return to the UK, and to continue studying or working remotely from their home country
- absent from the UK for another reason relating to the COVID-19 pandemic, e.g. they left or remained outside the UK because there were fewer COVID-19 restrictions elsewhere; they preferred to work or run a business from home overseas; or they would have been unemployed in the UK and preferred to rely on support from family or friends overseas
As this is a non-exhaustive list each case will be considered on an individual basis in light of the information and evidence provided by the applicant.
According to the guidance any COVID-19 related reason (including where they chose to leave or remain outside the UK because of the pandemic) relied on in the application will be considered as being an ‘important reason’ permitting an absence of up to 12 months. This is a significant change as applicants may not have to prove that they were compelled to remain outside the UK.
Single absence of up to 12 months for an important reason
An applicant’s continuity of residence in the UK will not be broken if they have a single absence of up to 12 months for an ‘important reason’.
Under the EU Settlement Scheme, non-exhaustive examples of important reasons include pregnancy, childbirth, serious illness, study, vocational training or an overseas work posting.
The updated policy confirms that the EU Settlement Resolution Centre will accept circumstances related to COVID – 19 (as mentioned above) as being an ‘important reason’.
Hence, applicants will remain eligible for status under the EUSS if they have failed to comply with the continuous qualifying period requirements of Appendix EU due to the COVID-19 pandemic.
Absence not intended to exceed 6 months and did not exceed 12 months
Unless an applicant is relying on a single absence for an important reason, their continuity of residence will normally break if they are absent from the UK for more than six months in any 12-month period.
The policy states that if an EEA citizen intended to be absent for no more than 6 months, but exceeded this, and was absent for a single period of up to 12 months, because of COVID-19, the continuity of their residence will not be considered broken.
Due to the impact of COVID-19 the absence will be considered to have been for an important reason and it will not break the applicant’s continuous qualifying period of residence.
Hence, the applicant can rely on any coronavirus related reason (including where they chose to leave or remain outside the UK because of the pandemic) as the basis for requiring an absence of more than 6 months and up to 12 months. In these circumstances, the applicant will be treated as not having broken their continuous qualifying period of residence.
COVID related absences exceeding 12 months
Under the new policy, excess absences due to COVID-19 do not break the applicant’s continuous qualifying period of residence.
This means that where, after an absence of 12 months for an ‘important reason’, coronavirus meant that the person was prevented from, or advised against, returning to the UK within 12 months, they will be treated as not having broken their continuous qualifying period of residence. In these cases, absences due to choice may not be considered as acceptable.
In this situation, the period of absence exceeding 12 months will not be counted towards continuous qualifying period of residence under the EUSS. Instead, the excess absence will have the effect of pausing the person’s continuous qualifying period of residence from the point their absence reached 12 months, with their continuous qualifying period then resuming from the point they return to the UK.
Where the applicant holds pre-settled status, and this is due to expire before they can complete the continuous qualifying period of residence required for them to be eligible for settled status, they will be able to apply for a further grant of pre-settled status.
Second absence of up to 12 months for an important reason
An EEA citizen who has already been absent for a period of up to 12 months for an important reason, and then has a second period of absence of up to 12 months for an important reason, and one of those absences is because of COVID-19, will not break their continuous qualifying period of residence. This includes where the individual chose to stay outside the UK because of the COVID-19 pandemic.
The initial 6 months of the second period of absence will count towards the continuous qualifying period required for settlement. The absence beyond that will not be counted as residence in the UK for the purposes of the EUSS. The person’s continuous qualifying period of residence will be paused from the point the second period of absence for an ‘important reason’ reached 6 months, with their continuous qualifying period then resuming from the point they return to the UK.
Where an individual holds pre-settled status, and this is due to expire before they can complete the continuous qualifying period of residence required for them to be eligible for settled status, they will be able to apply for a further grant of pre-settled status.
Additional evidence required for COVID related absences under the EUSS
An application to the EU Settlement Scheme can be made online.
The online application will require the applicant to upload additional evidence of their residence in the UK.
The applicant should upload evidence of how coronavirus affected their ability to return to the UK.
Evidence provided must explain how the applicant’s continuous qualifying period of residence in the UK has been affected by the COVID-19 pandemic.
The applicant must provide evidence of the length of, and reason for, any absence relating to COVID-19 on which they rely under this guidance.
Each application will be assessed on a case-by-case basis, and caseworkers will adopt a flexible approach when considering the evidence provided and apply discretion where appropriate. The deadline for applying for those residents in the UK before the end of the transition period is 30 June 2021. But individuals can apply after this date if there have been reasonable grounds for missing the deadline.
If you have been absent from the UK for more than six months in any 12-month period and you are unsure if you qualify for the concession contact Migrate UK.