Home office updated guidance due to Pandemic
There are two weeks to go until the 30 June 2021 deadline for EU Settlement Scheme (EUSS) applications. The Home Office has finally published long awaited updated guidance for applicants whose continuous residence in the UK has been affected by coronavirus.
The updated guidance contains more generous concessions than previously published in December 2020, following a successful legal challenge to the more restrictive initial guidance. This is welcome news for EU nationals and their family members who have chosen to leave or remain outside the UK due to coronavirus, for example, to care for their family members.
Crucially, in a significant departure from previous rules, the updated guidance now allows applicants who have pre-settled status to apply for a further grant of pre-settled status if they will not become eligible for settled status in the UK before their pre-settled status expires (for the reasons outlined in the new concessions).
Here we go through the main absence concessions outlined in the updated guidance.
Absences of up to 12 months for an “important reason”
Applicants for settled status (Indefinite Leave to Remain in the UK) need to show they have lived in the UK for a “continuing qualifying period” of 5 years, with absences of more than 6 months in any 12 month period breaking that qualifying period of residence. Similarly, applicants for pre-settled status need to demonstrate they have been present in the UK in the 6 months prior to the date of their application (and were resident in the UK prior to 31 December 2020).
However, a single absence of up to 12 months for an “important reason” has always been permissible without breaking the qualifying period of continuous residence, such as for pregnancy, childbirth, a serious illness, overseas work posting etc. The definition of “important reason” relating to coronavirus was previously restricted to very limited circumstances, for example being ill with coronavirus or having to self-isolate.
The updated guidance includes a wider range of coronavirus-related circumstances which fall within this definition, such as caring for a family member affected by coronavirus or being advised by an applicant’s university or employer not to return to the UK. Perhaps most significantly, the new list includes a ‘catch-all’ reason for applicants who were “absent from the UK for another reason relating to coronavirus, for example, you left or remained outside the UK because there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas.”
The guidance is very clear that this means applicants can rely on any coronavirus-related reason as an important reason for absences of up to 12 months, including where they chose to remain outside the UK due to the pandemic.
Similarly, where an applicant intended to be absent from the UK for less than 6 months but exceeded this due to coronavirus, they can rely on any coronavirus-related reason as the basis of requiring an absence of over 6 months and up to 12 months. In these circumstances, they will be treated as not having broken their continuous qualifying period.
Absences exceeding 12 months
Absences of over 12 months usually break the continuous qualifying period of residence in the UK, even if the absence was for an important reason.
However, the new concessions state that if an applicant initially remained absent from the UK for up to 12 months for an important reason and was then further prevented from or advised against returning to the UK within 12 months due to coronavirus, they will be treated as not having broken their continuous qualifying period of residence.
This concession for absences of over 12 months does not extend to any coronavirus-related reason and does not include circumstances in which the applicant chose to remain outside of the UK. Applicants will need to provide evidence that the extended period of absence (after the initial 12 months’ absence for an important reason) was because coronavirus meant they were prevented from or advised against returning to the UK within 12 months. For example, this includes where applicants can show they were ill with coronavirus, in quarantine, self-isolating or shielding in accordance with local public health guidance, caring for a family member affected by coronavirus, prevented from returning to the UK earlier due to travel disruption caused by the pandemic, etc.
The period of absence which exceeds 12 months will not count towards the applicant’s continuous period of residence. Instead, the applicant’s qualifying period will be paused from the point their absence reached 12 months and will resume from the point they return to the UK.
If the applicant holds pre-settled status and this is due to expire before they can complete the continuous 5 years’ residence required to become eligible for settled status, they will now be able to apply for another grant of pre-settled status.
A second absence between 6 to 12 months
EUSS applicants can usually only have one single period of absence of up to 12 months for an important reason without breaking their period of qualifying continuous residence. A second period of absence exceeding 6 months in any 12-month period will usually break the period of qualifying continuous residence, even if it was for an important reason too.
However, under the new concessions, applicants will not be counted as having broken their continuous qualifying period of residence if they can show that either one of those absences of up to 12 months was because of coronavirus. This includes any coronavirus-related reason for absences of up to 12 months, including where the applicant chose to leave or remain outside the UK due to the pandemic.
Either of these two absences can exceed the 12-month maximum absence if the applicant was prevented from, or advised against, returning to the UK earlier due to coronavirus. In these circumstances, the excess absence above 12 months will not be counted towards the continuous qualifying period of residence. Up to the first 6 months of the second absence will count towards the continuous qualifying period of residence. Continuous residence will then be paused from that point, and resume from the point of return to the UK.
Again, where someone holds pre-settled status and this is due to expire before they reach the full 5 continuous years of residence required to be eligible for settled status, they will be able to apply for a new grant of pre-settled status.
To rely on these concessions, applicants must provide evidence of the length of, and reason for, any absence relating to coronavirus.
A non-exhaustive list of examples of acceptable evidence can be found here, and includes copies of documents such as used travel tickets, confirmation of flight cancellations, letters from doctors, correspondence confirming the applicant or a person they were living with received a positive coronavirus test result, letters from a university or employer advising the applicant not to return to the UK, or a letter from the applicant accounting for their absence for another reason relating to coronavirus.
Applicants who are applying online can upload the above evidence digitally. Applicants using a paper form should submit the additional evidence with their paper form.
Original documents may be requested by the Home Office, and/or the Home Office may ask the applicant for further details in which case they should give the applicant a ‘reasonable’ opportunity to provide this.
Applicants who are unable to provide their passports or identity cards due to circumstances beyond their control or compelling practical or compassionate reasons due to the impact of coronavirus may be able to use alternative evidence of identity, nationality, or entitlement to apply outside the UK where relevant. This may be, for example, due to the closure of an embassy or high commission or inability to travel there to renew a document. In these circumstances, alternative evidence can be provided such as a document previously issued by the Home Office, an expired passport or national identity card. Paper forms are available by contacting the EU Settlement Resolution Centre for applicants who need to provide alternative evidence.
The guidance states that 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. Therefore, applicants who fall within the above concessions should apply without delay with all the relevant evidence they can gather and explain where there are good reasons why they cannot obtain any missing documentation. The deadline to apply of 30 June 2021 is fast approaching!
Please contact Anita de Atouguia, Partner or Zahira Patel, Associate at Doyle Clayton, if you have further questions about your EUSS application or the new concessions.
Article originally published by ELLINT’s UK member firm, Doyle Clayton, on 15 June 2021.