Can our EU staff obtain settled status if they returned to their homeland during COVID-19?

EU citizens who want to continue to work or live in the UK must apply for settled or pre-settled status no later than Wednesday 30 June 2021. However, those who have been absent for over six months will need to return to the UK within 12 months to preserve their rights. 

Requirements

Any EU national or family member that has been living in the UK for a continuous period of five years can apply for settled status. If they've been living in the UK for less than five years, they can apply for pre-settled status. 

However, in both cases, EU nationals must be able to prove that they have not left the UK for more than 180 days in a 12 month period. This may cause problems for EU citizens who returned to their homeland during COVID-19. 

Are there any exceptions to the absence rules?

Yes, but these are limited to where someone is ill with Coronavirus, unable to travel due to travel restrictions or is self-isolating abroad (because they are ill, share a house with someone who is ill, or shares a house with someone who is in a vulnerable or at high risk high risk and/or they are vulnerable or at high risk).

There is also a catch all provision which states that any absence between six to 12 months will break the continuous qualifying service, unless there is another 'important reason' justifying the absence. Guidance on this point is limited, but it suggests that a single absence caused by serious illness, study, childbirth, vocational training, an overseas work posting or because of the need to self isolate might amount be sufficient. 

However, these exceptions don't currently apply to anyone who is absent for 12 months or more. This means that an EU national who has been outside the UK for 12 months is unlikely to be able to apply for settled or pre-settled status.  

What happens if someone left the UK to be with family during the pandemic and hasn't yet returned? 

It depends on how long the individual is out of the UK and the reasons for this. If their absence is linked to COVID-19 and falls within the exceptions outlined above, provided they return within 12 months, their continuous qualifying period won't be interrupted. However, if they chose to return to their homeland to be close to their families and didn't plan on returning during travel restrictions, these exceptions won't apply. This will interrupt their continuous qualifying period and they will need to restart it if they want to live or work in the UK. But, they can only restart their qualifying period if they returned to the UK on or before 11pm on 31 December 2020. If they didn't they will lose the right to claim settled or pre-settled status.

There are some circumstances where an EU citizen won't have to restart their five year qualifying period towards settled status. For example, time spent in the Channel Islands or the Isle of Man may be treated as time spent in the UK.

Can an EU citizen have more than one long term absence over a five year period?

A person is only allowed to take a single absence exceeding six months (but not exceeding 12 months) for an important reason in their five year continuous qualifying period.

If they exceed this, it will interrupt their continuous qualifying period regardless of the reason for it, including if the individual was prevented from returning to the UK because of coronavirus.

What evidence will EU nationals need to provide to demonstrate they have not exceeded the absence requirements?

The Home Office has a checklist which explains what documents EU nationals need to provide to evidence of residence. Generally, EU citizens only need to provide one document dated in the last six months to be granted pre-settled status. These include annual bank statements showing at least six months of payments received or spending in the UK. The Home Office may also ask to see passport stamps, used travel tickets or medical evidence to show that the applicant attended a GP or hospital appointment. 

Do you need help?

We have provided answers on a number of questions for EU workers who want to continue to work in the UK which you can read here. 

If this doesn't answer your question, please speak to one of our immigration experts, Padma Tadi and Sybille Steiner.