Will I Lose my Pre-settled Status if I Leave The UK?
As the end of 2020 draws ever closer, and with it the end of the current Brexit transition period, many EU nationals currently in the UK, and those planning to come to the UK will be looking at the details of the EU Settlement Scheme. It is essential for any EU national who wishes to secure their right to residence in the UK to apply as soon as possible or at least before 30th June 2021 when the application window expires. Many with the less secure pre-settled status are understandably confused as to their rights, including whether they might lose their immigration status if they leave the UK. In this article, we will explain how the pre-settled status works, the rights it affords, and the continuous residence and absence rules you need to be aware of.
What is the EU Settlement Scheme?
The EU Settlement Scheme (EUSS) allows EU nationals living in the UK up to and including 31st December 2020 to remain in the UK after 30th June 2021. When you apply, you will be given one of two statuses:
- Pre-settled status – if you moved to the UK by 31st December 2020 but you have not yet been living here for five or more years continuously
- Settled status – if you moved to the UK by 31st December 2020 and you have been living here for five or more years continuously.
pre-settled status does not grant indefinite leave to remain (as settled status does), rather it allows individuals another five years to acquire settled status. The government’s EUSS guidance states “You can then apply to change this [pre-settled status] to settled status once you’ve got 5 years’ continuous residence. You must do this before your pre-settled status expires”.
If you are close to reaching the point of having five continuous years in the UK before 31st December 2020, you can wait and apply for settled status, meaning you don’t need to make two separate applications.
What Rights Does Pre-Settled Status Provide?
With pre-settled status, you will be able to:
- work in the UK
- use the NHS with making any payment
- apply for education or continue studying
- access public funds such as benefits and pensions, if you’re eligible for them
- travel in and out of the UK
It is important to note that you are able to leave the UK and return with pre-settled status, however, there are restrictions on how long you can remain outside of the country without breaking your period of continuous residence.
How do I Apply for Pre-settled or Settled Status Under the EUSS?
The process of applying for settled or pre-settled status under the EUSS is very straightforward and is completed in two parts:
- Prove your identity – either through the ‘EU Exit: ID document check’ mobile phone app. The app requires a phone running Android 6.0 and above, or an iPhone 7 or newer model with iOS 13.2. This can also be done by post, or by attending an UKVCAS service point.
- Complete the online application form.
The Home Office will use the information you provide in addition to your immigration and tax records to work out whether you qualify for pre-settled or settled status (you will not need to choose which one you are applying for).
The EUSS scheme is free of charge.
The Home Office state that they will advise you if they find a mistake in your application, and give you a chance to rectify the problem. They will also let you know if they need any additional information before making a decision.
You will be notified in writing of the decision, typically within five working days. If you are not successful, you can reapply anytime before 30th June 2021, apply for an administrative review if you believe a mistake has been made, or lodge a formal appeal.
How long am I Allowed to be Outside of the UK with Pre-settled Status?
The Home Office’s immigration policy explains, “If you have pre-settled status, you can spend up to 2 years in a row outside the UK without losing your status. You will need to maintain your continuous residence if you want to qualify for settled status”. The guidance also states, “Where an applicant is granted pre-settled status (limited leave to enter or remain
under Appendix EU), their status will generally lapse when they have been absent
from the UK and Islands for a period of more than 2 consecutive years”. This compares to the five years which can be spent outside the UK with settled status.
It is important to ensure that you remain within the two-year absence allowance under the EUSS. In some cases, applicants who believed they were eligible, had exceeded the time allowed outside of the UK, and have been refused settled status.
If you have been refused settled status on the grounds of being outside the UK for more than two consecutive years in the past five years, then it is important to engage the services of immigration Solicitors. This is also the case if you suspect you are close to, or you have exceeded the limit, but you are yet to apply. It may be possible to request that the Home Office make an exception if you have compelling reasons for not meeting the requirement. For example, if you were unable to return on time due to COVID-19, or if you were caring for a sick family member. An immigration lawyer will be able to include a covering letter to ensure the reasons for any time beyond the allowed two years is explained and evidenced. In addition, there are some exceptions for those on official government business within the EUSS policy guidance; “there are exceptions for those overseas on Crown service and those accompanying them”.
The clock is ticking for EU nationals in the UK who wish to remain to apply under the EUSS. Given the application is much simpler than a normal immigration application, and there is no cost, it is advisable to make the application even if you are unsure of your future plans.
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