The Home Office published guidance for EU Settlement Scheme (EUSS) applicants in or outside the UK who have been affected by restrictions associated with COVID-19 since the beginning of the pandemic.
The general rules of the Scheme are clear – for an applicant to be eligible for status, for them to be able to remain in the UK after the 31st of December 2020, they will need to confirm and prove a period of continuous residence in the UK. Depending on how long that period of residence is, the applicant will be granted either settled or pre-settled status.
To obtain settled status, or indefinite leave to remain, the applicant has to have been continuously residing in the UK for five years. The five years need not be ongoing; applicants who are not currently living in the UK may apply based on their historic residency, as long as they have not been outside the UK for a continuous five-year period immediately after the five-year qualifying period of residence on which their application is based.
If a person has been in the UK for less than five years, they will receive pre-settled status, which they will need to maintain until they reach the five-year continuous residence threshold to qualify for settled status. Continuous residency is calculated on a rolling basis, not based on calendar years, meaning that the applicant must be living in the UK for more than six months out of every twelve-month period.
The general rules state that applicants are permitted one period of absence of more than six months (but which does not exceed 12 months) for an important reason such as study or serious illness without losing their pre-settled status. This period of absence must be explained and proven when the applicant submits their settled status application. If an applicant is absent from the UK for longer than six months (but under 12 months), and it is not for an important reason, the absence will break their continuous residence, and they will not be able to apply for settled status.
Until today, it was unclear how the Home Office would deal with absences due to COVID-19 related reasons. The guidance published today confirms that they do not intend to be very flexible, but unfortunately does not clarify not much more than that, as it is not very detailed.
For applicants who were outside of the UK for a few months during the COVID-19 pandemic, the Home Office essentially applies the general exception rule. The guidance confirms that if an applicant was impacted by coronavirus public health restrictions and could not travel as a consequence, this will count as an exceptional circumstance which may justify absences from the UK of over six, but under 12, months. Examples given include if the applicant contracted coronavirus overseas and could not return to the UK because they were ill or in quarantine, or if imposed travel restrictions led to an increased absence from the UK for longer than planned.
In all cases where the applicant was prevented from travelling due to COVID-19 related reasons, they will have to provide a supporting letter explaining and outlining the various details of their time abroad – when they were ill or quarantining, when their flights were cancelled, and any other important dates. No additional detail is given about the standard or expectations of proof. In any case, an applicant is only allowed a single absence exceeding six months (but not exceeding 12 months) for an important reason in their five-year continuous qualifying period, meaning that if an applicant already had an important reason for which they had to leave the UK for more than six months before the pandemic hit, their counter for number of years with continuous residency will have to be reset to include only the latest period of absence.
An example could be a student who arrived in the UK in 2016, studied abroad from September 2017 until June 2018, for which they planned to use the “important reason” exception, and who in the past 12 moths has spent seven months abroad due to a combination of pre-covid trips, and a five-month lockdown which they spent in their home country. This applicant would not be able to claim an “important reason” both for their period abroad in 2018, and for their prolonged absence in 2020. As a consequence, they would have to “reset” their counter to when they returned to the UK after their year abroad, and will only be eligible to apply for settled status in 2023 instead of 2021, as they would have been under normal circumstances.
Another issue addressed in the guidance is that of people who need certain evidence of their identity and nationality to apply to the EUSS, but are unable to obtain it due to circumstances beyond their control specifically related to coronavirus public health restrictions. Examples given include the closure of embassies or consulates, or the inability to travel to the closest consular services which may mean that it is impossible to obtain the conventional identification documents. In these circumstances, the Home Office may accept alternative pieces of evidence of nationality such as expired passports or ID cards, another official document issued by the authorities of your country of origin or of the UK which confirms your identity and nationality or previous Home Office communication evidencing your nationality. People who apply to the EUSS with alternative means of identification documents must apply on a paper application form, applications which generally take longer to resolve than the electronic ones.
Both for applicants relying on alternative evidence of nationality and for those justifying a prolonged absence from the UK based on COVID-related public health restrictions, the Home Office evaluates claims on a case-by-case basis. There is no provision for leeway or discretion in any circumstance, for example if an applicant is only missing a few days to reach the official six-month threshold, nor is there any detail on how an applicant is meant to prove the reasons for their absence.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme. Under the Scheme, EU citizens will be given either pre-settled or settled status. To obtain pre-settled status (which gives EU citizens temporary residence in the UK for a limited period of five years), an applicant does not have to prove much: they must simply show that they have arrived in the UK before 31 December 2020. For settled status (which gives EU citizens permanent residence rights in the UK), it is a different story.
An applicant wanting to obtain settled status will have to demonstrate that they have been continuously resident in the UK for five years. What does that mean exactly? In this post, we have a look at the law which applies in this scenario to try and get a better idea.
The way Appendix EU to the immigration rules, which sets out the legal framework for the EU Settlement Scheme, defines continuous qualifying residence for the acquisition of permanent residence is based on the idea of a 6 month out of 12 months “rolling” residency. The definition of “continuous qualifying period” in Appendix EU states:
a period of residence in the UK and Islands…
(b) during which none of the following occurred:
(i) absence(s) from the UK and Islands which exceeded a total of six months in any 12-month period [emphasis added]
Imagine a scenario where an applicant, Serge, moved to the UK from France in April 2016. Until June 2019 he only went home for a few weekends and holidays, so he does not have to worry about his absences for his first three years of residence. In July 2019, his fourth year of residence, however, Serge went back to France for the summer and was absent from the UK until the end of September (three full months). He then came back to London, until January 2020, when he went back to France. He was supposed to return to London in February, but ended up staying abroad until May 2020, facilitated by him working from home during the COVID-19 pandemic. This is an absence of four full months in the calendar year of 2020.
But Appendix EU does not work in calendar years. Rather, it analyses periods of residence on a 12-month rolling basis. As a consequence, Appendix EU would interpret the above-mentioned scenario to mean that Serge has broken his continuous qualifying period on account of combining the three months absence in year 4 with the four-month absence in year 5 resulting in a combined absence of seven months in a 12-month period. The drafting of the criteria does not allow the citizen to demarcate the absences into separate 12-month periods.
When it comes to COVID-19 related absences, the Home Office have said that they will be flexible, and consider it as an exception to the 6-month rule if need be. Serge might then be able to rely on this exception when he applies for settled status in April 2021. However, the validity of this exception is not guaranteed, but rather subject to Home Office discretion. In addition, not all applicants will be able to do the same
The Court of Justice of the EU has held that periods of continuous legal residence confer on EU citizens the right of permanent residence with effect from the actual moment at which they are completed. This means that the continuous period of five years legal residence that leads to the acquisition of the right of permanent residence is to be counted from the moment the EU citizen takes up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive.
In fact, the definition of “continuous qualifying period” in Appendix EU does not comply with provisions regarding continuous residence in the EU Free Movement Directive and the EU-UK Withdrawal Agreement. The rule from those legal instruments is that an EU citizen may have temporary absences not exceeding a total of six months within each year leading up to the acquisition of the right of permanent residence, and that each year starts on the anniversary of the date when the EU citizen took up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive, meaning that absences in different years must not be added up.
It should be noted that the way the Home Office calculate qualifying residence for permanent residence under the EEA Regulations (implementing the Citizens’ Directive in domestic legislation), is not clear on this matter as there has been a change in Home Office guidance instructing case workers how to assess the continuous residence requirement. Former guidance stated that the Home Office would consider absence is based on a year 1 to 5 from when the EU citizen began their UK residence. Current guidance states that a six months absence in any 12-month period would break continuous residence without reference to calculating this on a year by year basis. Therefore, the current interpretation of continuous residence under the EEA Regulations is in conflict with Appendix EU. This could easily be remedied by changing the guidance back, and ensuring that EU citizens get the status they are entitled to.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
A cross-party report published last week urges the UK and EU to ensure that the citizens' rights protections in the Withdrawal Agreement are fully implemented for UK nationals living across the EU and EU citizens in the UK. All recommendations were agreed upon by the Committee on the Future Relationship with the European Union. Broadly, the Report, to which Seraphus submitted written and oral evidence, underlines the necessity of many long-standing demands of professionals and third-party actors in the field of immigration and EU law.
For UK nationals in the EU, the Report makes three key recommendations. Firstly, it states that UK nationals living abroad need to be made aware of what they need to do to secure their rights. The Report calls on the Government, together with the European Commission and each Member State, to increase monitoring of the processes in each state. It also reiterates that the registration/application processes should be simple and avoid any unnecessary administrative burdens.
Secondly, the report states that deadlines for UK citizens to apply should be extended where necessary. In fact, of the thirteen Member States that have decided to require a new application for UK citizens to remain there legally, seven have already extended the deadline beyond 30 June 2021, which is the standard date for the end of such application schemes. The Committee urges other Member States to consider similarly extending the deadline if it becomes apparent that large numbers of UK nationals have not applied. In general, the Committee recommends countries take a pragmatic approach to delays, such as where Covid-19 causes a reduction in their capacity to manage applications.
Thirdly, the Report reiterates that UK nationals should be actively encouraged to register under the system of their host country. Due to free movement laws in operation over the past decades, many Brits living in countries such as Spain, Greece, France or Portugal are not necessarily registered with the local authority. It is almost impossible to estimate how many UK nationals are unregistered. Encouraging registration now, with the end of the transition period approaching, is vital, as it is often the first step in securing rights protected by the Withdrawal Agreement.
EU nationals in the UK face similar challenges if they want to stay in the UK lawfully. Unsurprisingly, then, the Report mirrors these requests to protect EU nationals in the UK in the same way as UK nationals abroad should be protected. In sheer numbers, the figures of EU citizens needing to apply to the EU Settlement Scheme to remain in Britain is far greater than the number of Brits needing to apply to similar schemes abroad. The concerns for EU citizens’ rights are therefore urgent.
The main issue identified is that although the EU Settlement Scheme has been a significant achievement (with over 4 million applications), it is still unknown how many EU citizens have yet to apply, as there is no clear data on the matter. Following from that, the report expresses concern over the application deadline of 30 June 2021, and what will happen to people who fail to apply before that. The committee urges ministers not to apply an unduly restrictive approach to late applications and to look for reasons to grant status rather than to refuse it.
The report also emphasises the danger for people with pre-settled status not knowing or understanding that they will need to upgrade their status before their pre-settled status expires. It urges the Government to publish guidance for caseworkers on how it will inform citizens with Pre-Settled Status that they are able and required to apply for an upgrade to Settled Status when the time comes.
Another concern highlighted is the danger for vulnerable individuals and groups in the UK. The report is unequivocal in stating that these individuals need more tailored support. Difficulties faced by some EU citizens, for example language or technology barriers, or problems with producing documentary evidence of their residence, are not uncommon. Communication with, and support for, these citizens, either directly from Government or through existing community organisations, must be prioritised as the 30 June 2021 deadline approaches.
There remains a lot of work to be done concerning communication and outreach, and that is why the report also recommends for funding to organisations providing support and advice to EU citizens to be extended beyond the end of this financial year (March 2021) as the government previously promised.
Finally, the Report argues that EU citizens in the UK should be able to apply for a physical document proving their legal residence in the UK. At the moment, EU citizens who successfully apply to the EU Settlement Scheme merely receive a digital confirmation. They have to log in and access their status online every time proof of legal residence is required, for example when opening a bank account, accessing benefits, renting a flat or changing jobs. The report urges the government to reconsider this, as it risks discriminating against EU citizens. This is because from 1 January 2021, identity checks will be performed online instead of through the familiar ID or passport check, only for EU citizens. For non-EU citizens, the same checks will be carried out in a way that is already known and familiar. The Government is urged to set out how it will monitor and review the rollout of these digital checks, parallel to the physical checks for third-party nationals. It also asks the Government for an update on progress establishing the planned Independent Monitoring Authority. This recommendation is especially relevant after last week’s debate in the House of Commons, where the government voted against a proposal to give EU citizens physical proof of status.
The key theme running through the entire report is the need for transparency and clarity. A lot of the recommendations are about outreach, awareness and simplicity of proving status. These are all things the government have been doing, but not enough. EU citizens in the UK as well as UK citizens abroad need to be made aware of what is expected from them, so that the end of the transition period can happen as smoothly as possible.
If you need assistance you can contact us here, call us on 020 8142 8211 or send us a question on WhatsApp.
For an applicant to the EU Settlement Scheme to receive either pre-settled or settled status, they will have to fulfil three key criteria. Firstly, they will have to prove that they are eligible to apply by evidencing their identity and nationality, and if necessary, their family relationship. Secondly, they will have to answer a few questions about criminality to see whether they are suitable for (pre)settled status. Finally, they will have to confirm and prove a period of continuous residence in the UK. This is the requirement that defines whether the applicant will be granted pre-settled or settled status, the latter obviously being a stronger and more permanent status for the applicant.
To obtain settled status, an applicant has to have been continuously residing in the UK for a five-year period. Applicants who are not currently living in the UK, but are applying based on their historic residency, will have to maintain their eligibility by proving that they have not been outside the UK for a continuous 5 year period immediately after the 5 year qualifying period of residence on which their application is based.
If a person has continuously resided for less than 5 years, they will be on course for pre-settled status. Once they obtain pre-settled status, they will need to continuously reside in the UK to maintain their status and further down the line, to reach the five-year requirement to qualify for settled status.
They can maintain their continuous residence by living in the UK for more than six months out of every twelve-month period. Applicants are permitted one period of absence of more than 6 months (but which does not exceed 12 months) for an important reason such as childbirth, serious illness, study, vocational training, overseas posting, or compulsory military service, without losing their pre-settled status. If the absence is longer, and it is not for an important reason, it will break continuous residence, and they will not be able to apply for settled status.
This might be the way the Home Office decides to deal with COVID-19 related absences – either it’s an important reason and the applicant “uses” their exception for it, or they return to the UK before 11pm on 31 December 2020 so they can re-start a new period of residence in the UK.
But this pre-existing rule is not enough, and does not cover every scenario where absences will affect those under the EUSS.
There are two key dates in relation to the EU Settlement application process: the eligibility deadline and the application deadline. The application deadline is 30 June 2021, but a person has until 31 December 2020 to become a person eligible to apply. This means that for EU citizens, residence in the UK must commence before 11pm on 31 December 2020 in order for them to qualify for status. Similarly, for most family members, the relationship must exist before 11pm on 31 December 2020 for the relationship to be considered under the EUSS.
As a consequence, absences can affect both EU citizens and family members in different ways. For example, imagine a Bulgarian national intends to come to live in the UK and would like to do so under the EUSS. They must move to and commence residence in the UK before 11pm on 31 December 2020 in order to get pre-settled status, which after five years of residence can then be “upgraded” to settled status. If they cannot move before 31 December 2020, then they will have a much more difficulty immigration process to get through in the new 2021 immigration system. This is quite a straightforward scenario – EU citizens know that their time to enjoy free movement and move to the UK is running low.
More pressing will be the ability to establish a family relationship before 11 pm on 31 December 2020. Imagine a French national who is intending to marry a Cameroon national. Imagine the couple have not known each other for very long, so they are not entitled to the status of “durable partners,” but they intend to get married in April 2020. Due to COVID-19, the marriage was delayed; it could not take place either in the UK or Cameroon due to the travel restrictions and social restrictions, most importantly because neither party to the marriage could travel. As a consequence, come the EUSS deadline for eligibility of 31 December 2020, the couple will be unable to establish their relationship existed (in the strict sense of the rules) before 11 pm on 31 December 2020, and as a consequence the Cameroon national will not be able to bring herself within the scope of EUSS status.
The couple will be locked out of the easier EUSS family permit route and will instead need to consider the strict rules for entry as a spouse, which are much more complicated. If the French national has previously obtained settled status under the EUSS, they will be able to sponsor their Cameroon partner under the spouse visa rules. If the French national merely has pre-settled status, however, this will be impossible. They will be separated from each other for a considerable period of time until the French national acquires settled status and then applies to bring their spouse in on a spouse visa.
These types of situations are not just typical for married couples. Unmarried (durable) partners must be in their relationship with their EEA partner before 31 December 2020 as well. To be eligible to apply for (pre-)settled status as a durable partner, the durable partnership must first be assessed as genuine by the Home Office. “Genuineness” is generally hard to prove. In the case of a durable relationship, the Home Office requires durable partners to apply for a document under the EEA Regulations to evidence their relationship. That document must be issued and received before the durable partner can then apply for status under the EUSS, meaning that if you’re an unmarried partner (i.e. durable partner) an application for that document must be made before 31 December 2020. If you’re a dependent relative (other than someone in the ascending lines of the EU citizens, spouse, or civil partner of the EU citizen), again, you must hold a relevant document for which an application must be made before 31 December 2020.
So, if COVID-19 prevents an applicant from being able to travel and/or apply for the necessary documentation in time, then they will be locked out of the EUSS. There are countless scenarios where this could go very wrong. For example, if an EEA national has died due to Covid-19, then their family members who are left behind should be able to apply for pre-settled or settled status. But under the current rules, those family members would only be eligible for status if they lived with the EEA national for at least one year immediately before they passed away. Setting aside the tragedy and trauma of losing a family member without even being able to say goodbye to them, what happens if the family member was unable to return to the UK in time due to travel restrictions, and they could not reach one year of living together? They will be locked out of the EUSS.
Or what if an applicant wants to retain their residence rights after divorcing their EEA partner? In order to do so, the marriage needs to have lasted for at least three years before starting the divorce proceedings, and both partners must have been living in the UK for at least one year before they apply. Again, if COVID-19 prevented the applicant from reaching that one year threshold before 31 December 2020, they will be locked out of the EUSS and it will not be possible for them to retain their rights.
This would simply be unfair. COVID-19 has had an impact on virtually every aspect of society and government. The immigration system is no different. The process of Brexit has been halted, slowed and changed by the virus as well. That is why the Brexit Civil Society Alliance wrote a letter to the Home Secretary asking for exemptions to the rules to deal with any breaks in continuous residency caused by COVID-19, so that no EU citizen is forced out of status through absolutely no fault of their own.
The Home Office replied stating that "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."
Based on this response and our internal discussions with the Home Office, it doesn’t appear that COVID-19 will kill applications under the EU Settlement Scheme. In fact, the Home Office have confirmed verbally that absences due to Covid-19 will be considered as a serious reason for those who are on course to apply for or have received pre-settled status. This means that one absence of more than six months but not more than twelve for COVID-19 related reasons will not be considered to have broken continuous residence.
Although it is a step in the right direction, this is the only flexible approach the Home Office have referred to, and it fails to cover all of the other possible scenarios where absence will cause other problems.
Home Office policy on absences affecting those under the EUSS is yet to be determined because, they stated, COVID-19 related absences is an issue that affects all immigration categories and not just the EUSS, so they are trying to work out a holistic approach throughout the immigration system. It might be that the Home Office are taking this issue seriously, and it’s therefore taking time to put together a comprehensive, flexible and compassionate policy to deal with it. However, it might also be that part of it was a wait and see approach to see how serious of an issue absences might be for some visa categories.
But a wait and see approach will not suffice. As EU free movement law fully applies during the transition period, the issue of absence has to be assessed under Article 16(3) of the Free Movement Directive in the same way as for mobile EU citizens having their residence in an EU Member State. A longer absence due to the coronavirus/COVID-19 crisis should be treated as force majeure (unforeseeable circumstances that prevent someone from fulfilling a contract) and should not, therefore, be deemed to break continuous lawful residence.
In the meantime, any absences due to Covid-19 must be documented and evidenced, as the Home Office never takes an applicant’s word for truth. If your continuous residence is endangered due to COVID-19, you are going to need to have evidence that the enforced absence is linked to Covid-19 as well as that your return to the UK was completed as soon as it was safe and reasonably possible. The reality is that unless the Home Office decide to declare COVID-19 as an event of force majeure, the burden is going to be on applicants will need to put their case to the Home Office in order to have the best chance that discretion will be exercised in their favour.
If you have any questions regarding absences or the EU settlement scheme, please do not hesitate to contact us here or send us a question on WhatsApp.
These are times of uncertainty and while the primary concern is for public health, without further assurances from the UK Government, the vulnerability of being subject to immigration control can compound other worries during any crisis. The large-scale postponement, suspension and cancellation of social activity, including working and studying commitments, poses some important questions about satisfying the conditions of student visas.
UK Visas and Immigration (UKVI) requires all Tier 4 institutions (schools, colleges, higher education facilities and universities) to keep a record of sponsored Tier 4 students including their attendance levels. This is required in order to meet their sponsor duties towards the UKVI when sponsoring students to study with them.
There are consequences to students who are absent from studies or cannot complete their studies before their Tier 4 visa expires. If a student misses 10 consecutive expected points of contact, without the Tier 4 institution’s authorisation, the guidance normally requires them to withdraw their sponsorship of the student. If their sponsorship is withdrawn from the student, the student will have no longer be able to continue their studies in the UK.
What about absences due to Covid-19?
The current circumstances being exceptional, specific government guidance that addresses Covid-19, last updated on 27 February 2020 and since overshadowed by other announcements, has been issued (last updated on the 27th February) gives us some parameters to work with:
‘Some Tier 4 students or Tier 2/5 employees may be prevented from attending their studies or employment due to illness, the need to serve a period of quarantine or the inability to travel due to travel restrictions caused by coronavirus’.
This covers students who are taken ill by Covid-19, with absences authorised by the institution, as well as those whose movements have been restricted due to the threat. It goes on to say:
‘The Home Office recognises the current situation is exceptional and will not take any compliance action against students or employees who are unable to attend their studies/work due to the coronavirus outbreak, or against sponsors which authorise absences and continue to sponsor students or employees despite absences for this reason. The Home Office will keep this under review, especially if the length of absences mean a potential repeat of period of studies become necessary’.
This means Tier 4 institutions do not need to report students who are absent due to Covid-19, as long as those absences are authorised by them. This also means the institution should not withdraw their sponsorship of the student.
In light of the guidance and given that the situation is developing and changing constantly, it is advisable that students keep a record of any emails or letters sent by their institution, which confirm (in writing) the latest advice on, or authorisation of attendances, while Covid-19 is posing health and logistical issues to life in the UK.
What about institution closures or online studying?
The above guidance would apply if a Tier 4 institution decides to close completely or partially. This will be fine for short-term absences due to closures. Some Tier 4 institutions are deciding to close premises and transfer all teaching online – in these cases, they need to ensure they are confident the students are ‘attending’ online sessions in order to maintain their UKVI duties.
However, if the absences become so long that the student is unable to complete their studies before their visa expires then the institution will have no choice but to cancel their sponsorship. No one should be in this situation yet and we expect - given that this appears to be a long term situation - the above government Covid-19 guidance to be updated to inform us how they intend to deal with longer term absences.
We will update you when the government’s Covid-19 guidance is updated.