This article was published in the Immigration Law Practitioners’ Association (ILPA) monthly newsletter on 22 June 2021. 

On 10 June 2021, the Home Office published revised guidance, Coronavirus (Covid-19): EU Settlement Scheme, following a successful legal challenge by Here for Good. The new guidance provides further clarity on how the Home Office will treat Coronavirus-related absences from the UK.

The challenge

The issue of absences is very important, as continuous residence in the UK is a key criterion for eligibility to the EU Settlement Scheme (EUSS). In the original guidance, published on 15 December 2020, the Home Office set out that absences related to the Covid-19 pandemic would be accepted only in limited circumstances and where they amounted to a single period of no more than 12 months.

Concerned about the impact the guidance would have on European Economic Area (EEA) nationals and their family members being able to secure their residence rights in the UK post-Brexit, and in light of the Covid-19 pandemic, Here for Good sought to challenge the guidance. Here for Good was particularly concerned that the guidance unlawfully penalised people who were elderly or clinically vulnerable (or those whose relatives were vulnerable in this way), those who had sought conscientiously to comply with public health guidance by avoiding non-essential travel, and those caught up in local restrictions or travel disruption.

On 12 March 2021, an application for judicial review was lodged to challenge the guidance, seeking its withdrawal. On 6 May 2021, the guidance was withdrawn, and on 10 June 2021, new guidance was published. The new guidance is an interim measure until Appendix EU can be amended accordingly.

The new guidance

Under Appendix EU of the Immigration Rules, ‘continuous residence’ means a period of unbroken residence in the UK. Ordinarily, continuous residence will be broken if you are absent from the UK for more than six months in any 12 month period, except where you have a single period of absence which did not exceed 12 months and it was for an important reason (such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting), or Crown Service, compulsory military service or time spent working in the UK marine area.

The new guidance acknowledges that there are circumstances, due to Covid-19, where people may have been absent for longer than is permitted under Appendix EU. In these circumstances, a person’s continuity of residence will not be treated as having been broken by the excess absences. The guidance identifies the following scenarios:

1. Where a person intended to be absent for less than six months, but exceeded this for up to 12 months due to Covid-19

Under the new guidance, where a person intended to be absent for no more than 6 months, but exceeded this because of Covid-19, they will not be treated as exceeding the absence permitted under Appendix EU.

Examples of what Covid-19 related reasons could be are provided for in the guidance, but it is made clear that the list is non-exhaustive. The examples provided are very broad and include situations where individuals chose to leave or to remain outside of the UK because of the pandemic. Applicants to the EUSS will need to provide evidence in support of their applications and Home Office caseworkers will consider applications on a case-by-case basis.

2. Where a person has been absent for up to 12 months for an ‘important reason’

As with scenario one above, individuals who have been absent from the UK for up to 12 months will be able to rely on Covid-19 as an ‘important reason’. It will be necessary for the individual to show that the absence was related to Covid-19. The list of potential examples is the same as option one, and again includes situations where the individual chose to leave or remain overseas due to Covid-19.

3. Where a person has been absent for an ‘important reason’ but exceeded 12 months as they were prevented from or advised against returning to the UK earlier due to Covid-19

Ordinarily, absences in excess of 12 months will break a person’s continuity of residence in the UK. However, the new guidance confirms that absences in excess of 12 months can also be considered as an ‘important reason’ under Appendix EU where they are Covid-19 related.

It is important to note that the list of examples of when this concession can be relied upon are narrower than those available to individuals who have been absent for less than 12 months; it is limited to when the person was prevented from, or advised against, returning to the UK earlier. Furthermore, even though the absence is permitted, any period over 12 months will not be counted towards their qualifying period of residence for settled status. Their residence will effectively be paused once their absence reaches the 12 month mark, and restart when they return to the UK.

For example, P has pre-settled status and 1 September 2022 marks his five-year anniversary of residence in the UK. P was absent from the UK from 1 January 2020 until 1 June 2021, for reasons fitting into this category. P’s residence will not be broken by his absence, even though it is longer than 12 months. However, P’s residence from 1 January 2021 until 1 June 2021 would not count towards the five year period of residence required to qualify for settled status. Practically, P could not apply for settled status by 1 September 2022 as anticipated. P would have to apply for a further grant of pre-settled status and make up the six month excess period before qualifying for settled status.

As above, examples of reasons are provided but the list is non-exhaustive and caseworkers will also consider applications on a case-by-case basis.

4. Where a person has already been absent for up to 12 months for an ‘important reason’, but needs to be absent again, and one of the absences is for a Covid-19 related reason 

This is allowed, and either period of absence can exceed 12 months in accordance with the category above. That said, only six months of the second period of absence will be considered as residence for the purposes of settled status applications. As in scenario three above, any excess period will pause residence until the person returns to the UK. Such a person could apply for a further grant of pre-settled status as above.

The guidance is intended to benefit a number of different categories of individuals, not just those who have already applied to the scheme. It also applies to:

• Those whose pre-settled status has lapsed due to an absence of over two years due to Covid-19;
• those who have not yet applied under EUSS but were resident in the UK by the end of the transition period (11pm on 31 December 2020).

With all categories above, the applicant will be expected to submit evidence in support of their application to demonstrate the reason for their absences. The guidance provides examples of evidence that could be provided, which includes (but is not limited to) confirmation of flight cancellations, a doctor’s letter, a letter from employment/university etc.

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