The policy has been published in response to a successful legal challenge by the charity, Here for Good, and operates as a concession outside the Immigration Rules until the EUSS Rules can be formally amended. The policy published on GOV.UK is also supplemented by guidance to Home Office caseworkers titled ‘EU Settlement Scheme: coronavirus (COVID-19) guidance’.
The amended policy makes many more individuals eligible under the EUSS and better recognises the extent of travel and personal disruption brought about by the pandemic. It will be important to raise awareness of it, because many individuals will have previously been advised by the Home Office or immigration advisers that the nature and extent of their absences made them ineligible to apply under the old policy.
It is still the case that affected individuals should apply under the EUSS by 30 June 2021 if they do not already have status under the scheme. However, applications can be approved where there are reasonable grounds for applying late. Due to the late publication of this policy and the existence of a previous, much more narrow policy, it would seem likely that applying at the point a person becomes aware of their eligibility should be acceptable.
To avoid processing delays and potential refusal, it will be necessary for absences to be carefully analysed to check they fall within the policy, and for the length and reasons for absences to be evidenced as fully as possible.
Details of the policy are set out below.
Single absence of up to 12 months for an important reason
A person’s continuity of residence in the UK will not be broken if they have a single absence of up to 12 months for an ‘important reason’.
Under the EU Settlement Scheme, non-exhaustive examples of important reasons include pregnancy, childbirth, serious illness, study, vocational training or an overseas work posting.
The policy confirms that in relation to the COVID-19 pandemic, the Home Office will accept the following (non-exhaustive) circumstances as being an important reason:
The references to studying or working remotely from a person’s ‘home country’ seem to be unduly restrictive, as do references to universities but not to other education providers. However, the guidance is not exhaustive, so working or studying from another country may be accepted.
The ability to fall within the policy where a person chose to remain outside the UK (rather than being compelled to) is a significant change that will benefit intending applicants.
Absences not intended to exceed six months, and not in fact exceeding 12 months
Unless relying on a single absence for an important reason, a person’s continuity of residence will normally be broken if they spend more than six months in any 12-month period outside the UK.
The policy states that where a person intended not to be absent from the UK for more than six months in a 12-month period, but was in fact absent for no more than 12 months due to circumstances relating to the pandemic, the continuity of their residence will not be considered broken.
The (non-exhaustive) circumstances that can be relied upon are the same as for a single absence of up to 12 months for an important reason (see above).
This provision is a significant liberalisation of the previous policy. It will be helpful to people who were able to come and go from the UK during the pandemic to some extent, but who spent the majority of a 12-month period outside the UK due to pandemic-related circumstances.
Single absence exceeding 12 months for an important reason or reasons
Under the policy, an individual who has a single absence from the UK of more than 12 months for an important reason or reasons will still be eligible to apply under the EU Settlement Scheme if the pandemic prevented them from, or they were advised against, returning to the UK within 12 months and for a period beyond this.
The circumstances the Home Office will except in this scenario are more stringent than the other two above, as an absence due to choice is not considered acceptable. However, again, the examples set out in the policy are not exhaustive, so it is possible that where sufficient justification for remaining outside the UK is supplied, an application may be approved.
In this situation, the period of absence above 12 months will be considered to be a ‘pause’ in the continuous qualifying period required for settlement. As an example, if a person who meets the policy has a single absence of 14 months outside the UK, they would have to wait for five years and two months before applying for settlement under the scheme rather than five years.
Those whose pre-settled status will expire before the point at which they will qualify for settlement are able to make a further application for pre-settled status.
Second period of absence for an important reason
An individual who has already been absent from the UK for a single period of up to 12 months for an important reason and then has a second period of absence exceeding six months in any 12-month period for an important reason will still be eligible to apply under the EUSS if they can show that one of those periods of absence of up to 12 months was due to the pandemic. This includes where the person chose to stay outside the UK because of the pandemic.
One of the periods must be a single absence for an important reason. The other can be a period of absence exceeding six months in a 12-month period, either as a single absence or cumulative absences, because of the pandemic. Continuity of residence will not be considered to have been broken.
If an individual exceeds 12 months’ absence for either of the periods because the pandemic prevented them from returning to the UK, or they were advised against returning to the UK (but not that they merely chose to remain outside the UK), then the amount of time above 12 months will be considered to be a pause in the continuous qualifying period required for settlement.
The first six months of the second period of absence will count towards the continuous qualifying period required for settlement, provided that during the period being counted, the individual was not outside the UK for more than six months in any 12-month period. The continuous qualifying period will then be paused and resume from the point the individual returned to the UK.
Again, those with pre-settled status can apply for pre-settled status again if they will not meet the residence requirement for settlement before their existing status is due to expire.
It is not completely clear how single versus cumulative absences will be treated on this ground, and specific clarification may need to be sought from the Home Office for individuals who wish to rely on more than one period of absence for an important reason.
How does an applicant make use of the policy?
An applicant who is applying online should upload evidence of the length of any absence relating to the pandemic, and how their ability to return to the UK has been affected by the pandemic. An applicant who is applying on a paper form should supply the evidence in paper format.
Non-exhaustive examples of evidence are set out in the policy here. These are quite generous. Individuals may also be contacted by a caseworker and given a reasonable opportunity to provide additional information or evidence before a decision is made on the application.