Excess absences from the UK under the EUSS?

As per section EU11(3)(b), Appendix EU of the Immigration Rules, applicants who wish to apply for Settled Status under the EU Settlement Scheme (EUSS) must have completed a 5-year period of ‘continuous qualifying’ residence in the UK first.

In order to obtain ‘continuous qualifying’ residence, an applicant must not have been absent from the UK for more than 6 months, in any 12- month rolling period. In turn, this would allow them to qualify for Settled Status.

As a result of COVID-19, some applicants may be concerned as to whether they will be able to meet the above requirement. This is partly because, it is not possible to extend the Pre-settled Status and as a result, applicants must apply for Settled Status once they have met the 5-year mark of residence. Alternatively, they will need to apply for a visa under the Immigration Rules such as the Skilled Worker category.

However, they may wish to consider the following first:

Re-applying for Pre-settled status

If an applicant has broken their ‘continuous qualifying’ residence, they may consider re-applying for Pre-settled status in order to re-start the 5-year clock.

It is vital to note that in order to do so, the applicant must (1) have been residing in the UK before 31 December 2020 and (2) the application should be made before 30 June 2021.

Relying on an ‘important reason’

Annex 1, subsection (aa), allows applicants to have a single absence (maximum 12 months) if it is due to an important reason such as: study, serious illness, pregnancy, childbirth, an overseas posting or vocational training.

In addition, the ‘Coronavirus (Covid-19) EU Settlement Scheme- guidance for applicants’ states the following:

‘If you have been absent from the UK for a single period of more than 6 months, but not more than 12 months, during your 5-year continuous qualifying period due to being ill with coronavirus, and you were unable to return to the UK because you were ill or in quarantine, that absence will not cause you to break your continuous qualifying period.’

Therefore, it is unlikely that the UKVI will exercise discretion for any absence longer than 12 months, regardless of whether the latter is covid related or not.

As advised above, an application for Pre-Settled status must be made prior to 30 June 2021. This means that from 1 July 2021, EU, EEA and Swiss nationals residing in the UK who have not applied for the EUSS, will be residing in the UK unlawfully. This will have serious implications for EEA migrants and their family members.

However, on 1 April 2021 the Home Office clarified that there may be reasonable grounds which would allow a late application to the EUSS. Each case will be assessed on merit and the Home Office will give the applicant the benefit of the doubt.

Applicants issued with status under the EEA Regulations

Applicants may be unaware that they need to convert their status issued under the EEA Regulations to the EUSS scheme, as they will no longer be able to rely on the EEA Regulations after the deadline.

Applicants in an abusive relationship or in a controlling situation

Applicants may have been prevented from applying because they may have been or continue to be in an abusive or controlling situation which prevented them from doing so. However, an applicant would need to provide evidence of this, such as ill treatment or any other documents which would support their application.

Serious medical condition or treatment

Should a person have “a serious medical condition (or was undergoing significant medical treatment) in the months before, or around the time of, the deadline applicable to them.” This would be considered as a reasonable ground, but they will need to provide supporting medical evidence.

Applicants suffering from a physical/mental capacity and/or has care/support needs

If an applicant lacks the physical or mental capacity to apply, or has care/support needs, this will be taken into consideration as a reasonable ground. However, suitable evidence and a declaration from a third party who acts as their legal authority, would need to be provided.

Children

If a parent, guardian or Local Authority has failed to apply on the child’s behalf, the Home Office will not consider their reasons for failing to do so. It will constitute as a reasonable ground for a late application.

Victims of modern slavery or human trafficking

Where an applicant has been unable to apply as a result of modern slavery or human trafficking, this will be considered as a reasonable ground for applying late. The applicant will not need to provide evidence of slavery or trafficking, but the application will need to be referred to the Home Office safeguarding team, if the applicant does not have evidence from the National Referral Mechanism.

Applicants with limited leave or indefinite leave to enter or remain

Applicants with limited leave may apply to the scheme at any time after the scheme expires, as long as they have reasonable grounds for applying late. Applicants with indefinite leave to remain do not need to apply, but can do so.

Should you have any questions in regards to the EUSS, please do not hesitate to contact our team of dedicated immigration consultants by emailing [email protected] or calling us on: 02033843075.

The content of this article is for general use and information only. Since each case should be prepared on its own merit and in light of the constant amendments to the Immigration Rules, it is important to note that the information provided must not be relied upon unless Migra & Co has either given written consent or has been officially engaged in relation to a specific immigration matter. As a result, Migra & Co will take no responsibility for any damage, cost or loss resulting from relying on the information contained in this article, blog and website.


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