Pre-settled status: Absence of 2 consecutive years

[nordsee]

Hi all,

I understand that once I have been absent from the UK for more than 180 days in any 12 months period, I can no longer apply for settled status. I also understand that my pre-settled status will become invalid once I have been absent for 2 years.

I as absent in as below:

Mid March 2020 - End of July 2020 (while this period I was on UK payroll and had a home)
Mid September 2020 - now. (UK employment ended; home given up)

I'm not clear on whether I have to return by a) March 2022 or b) September 2022.

Can anyone help me out?

Thank you!

All the best

Nordsee

[alterhase58]

Hi, can't directly comment on this but maybe the absence calculator from the3million group helps? https://www.the3million.org.uk/absence-calculator

[nordsee]

Hi, can't directly comment on this but maybe the absence calculator from the3million group helps? https://www.the3million.org.uk/absence-calculator

Thanks for this. I have noticed this in another post, but I'm not clear on how and if my first period of absence counts.

[nordsee]

Does anyone has an idea or a link where I may read about this myself? Thanks in advance!

[goodpartner]

Hi there,

It is allowed under COVID 19 EU SETTLEMENT SCHEME that you can be absent up to 12 months in any twelve month period during the pandemic. Google it I think you will find it, I am not sure what happens when you claim those months (I mean the Home Office will just pretend that this absence did not happen). I am interested in that too, and wanted to ask somebody to comment.

[nordsee]

Well, but that would mean I could be absent for 12 months in 2020 and again for 12 months in 2021. And in the end the residency requirement for settled status would not be affected?

As good as it sounds, I can't really believe it since this would undermine the whole set of rules.

[nordsee]

https://www.gov.uk/guidance/coronavirus ... ants#above

You can stay outside the UK for up to 12 once (in one year) and can officially argue like this

"absent from the UK for another reason relating to coronavirus, for example, you left or remained outside the UK because there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas"

Further down on the page it provides some more details on absences over 12 months. It sounds like a lot of MAYBEs, but theoretically should be possible not to have broken the continuous residency period if staying outside the UK for more than 12 months. However, it is not guaranteed that the home office will recognise this.

Meaning, this will be some years of worrying of "Will I be granted settled status?".

[nordsee]

Dear all,

I'm trying to understand the definition of "2 consecutive years". I have not found the needed answer in any government guidance or other sources.

Situation

-Absence March-July 2020 (Corona related) - while maintaining residence and UK employment
-Left UK in September 2020 (no more residence available).

If I understand the guidance correctly, I have already lost the option to apply for settled status, but to my understanding I will be able to return to the UK before September 2022 and could stay until my pre-settled status expires. Is this correct?

Thanks in any case!

[kamoe]

It is allowed under COVID 19 EU SETTLEMENT SCHEME that you can be absent up to 12 months in any twelve month period during the pandemic.

I don't think that's the case. As far as I can read, there is ONE allowance, NOT as many allowances as you want. See page 159 of the EU Settlement Scheme caseworker guidance, where it says:

a single period of absence of more than 6 months but which does not exceed 12 months is permitted, where this is for an important reason,

It does say: "a single period of absence", not "several period of absences". The rationale is to allow people to keep their continuous qualifying period even in the case of an absence due to an unexpected important reason. It is not meant to allow people to consciously plan to have several absences on purpose.

[kamoe]

It sounds like a lot of MAYBEs, but theoretically should be possible not to have broken the continuous residency period if staying outside the UK for more than 12 months.

Correct, that's the answer to your original question.

However, it is not guaranteed that the home office will recognise this.

Is your long absence due to covid yes or no? And did you plan it, yes or no? That should give you a good idea of what to expect.

Again, the provision is there to help out people in a specific scenario of genuine residence, who for an important reason had to break their continuous qualifying period. Not for people consciously planning to leave the UK systematically several times and come back.

[nordsee]

I understand that the required period 5 years of residence for the settled status will be interrupted if the person has stayed out of the country for 6 months+ in any 12 month period. This is clear to me.

In another context, it also states that the pre-settled status will be voided after an absence of ore than 2 consecutive years. My question is how this is calculated.

1) Do these two years start counting from the date of last departure? OR
2) Or does the countdown starts with an earlier (4 months) absence in the same year?

In my case:

a) stayed out of the country March - July 2020 - while maintaining employment and residence (Corona related - got stuck abroad)
b) (next and) last departure was September 2020.

Do I need to return in March or September 2022 if I want to prevent my pre-settled status to be voided?

Thank you!

[goodpartner]

It is allowed under COVID 19 EU SETTLEMENT SCHEME that you can be absent up to 12 months in any twelve month period during the pandemic.

I don't think that's the case. As far as I can read, there is ONE allowance, NOT as many allowances as you want. See page 159 of the EU Settlement Scheme caseworker guidance, where it says:

a single period of absence of more than 6 months but which does not exceed 12 months is permitted, where this is for an important reason,

It does say: "a single period of absence", not "several period of absences". The rationale is to allow people to keep their continuous qualifying period even in the case of an absence due to an unexpected important reason. It is not meant to allow people to consciously plan to have several absences on purpose.

Hi Kamoe,

It is a game of words I believe. They say single absence meaning SINGLE in terms of of number of times it is allowed.

For instance a person was absent for 5 months, and then came back and had to leave UK again because of COVID-19 etc.. It will make more than 6 months absence within 12 months period which will be fine despite two absences within 12 months period. But if a person does it again then it will be a break in continues residency requirement.

By the context you can see they say upto 12 months of absence it is allowed within 12 months period.

BUT you are right it can be used only once within 5 years if I understand you correctly.

[goodpartner]

To be short

For instance my situation was:

I was out of Uk for 5.5 months because I had to support my family and I could work remotely

I was out from 18 June 2020 to 1 December 2020, then I came back and was in UK until April 29 2021, then a young family member got ill and died and I was out of UK until 5 July 2021 which is more than 6 months because from 18 June 2020 to 18 June 2021 I was out more than 180 days. But My second absence was due to COVID-19 as the first one.

Within consecutive year I was absent more than six months and how to construe the word SINGLE in that case? Since my absence was not SINGLE it means I am not eligible for allowance?

[kamoe]

Do I need to return in March or September 2022 if I want to prevent my pre-settled status to be voided?

Purely based on how these things are worded, I would personally interpret that you could return in September 2022 without losing your status. This is because, contrary to the continuous qualifying period, which is very specifically defined as "in any 12-month period", the 2-year absence rule is, as far as I can read, defined as "2 years in a row". That does sound like it means 2 years of uninterrupted absences, not a grand total accumulated in a rolling period of 2 years.

But that is just my interpretation. You can always follow the specific recommendation shared on the 3million calculator (download and open the Excel file) for when your absences exceed 6 months in a row, which is to seek legal advice at https://www.hereforgoodlaw.org/contact.

[kamoe]

Within consecutive year I was absent more than six months and how to construe the word SINGLE in that case? Since my absence was not SINGLE it means I am not eligible for allowance?

Seems like you would be allowed. See section entitled "You have already been absent from the UK for up to 12 months for an ‘important reason’ and now need to be so for a second time, and one of those absences is because of coronavirus": https://www.gov.uk/guidance/coronavirus ... nts#above1

Under Appendix EU, you can only have a single period of absence of up to 12 months for an ‘important reason’, as set out above. Where you have a second period of absence exceeding 6 months in any 12-month period for an ‘important reason’, you have exceeded the absence permitted under Appendix EU.

However, you can still apply to the EUSS where you can evidence that one of those periods of absence of up to 12 months is because of coronavirus.

[goodpartner]

Within consecutive year I was absent more than six months and how to construe the word SINGLE in that case? Since my absence was not SINGLE it means I am not eligible for allowance?

Seems like you would be allowed. See section entitled "You have already been absent from the UK for up to 12 months for an ‘important reason’ and now need to be so for a second time, and one of those absences is because of coronavirus": https://www.gov.uk/guidance/coronavirus ... nts#above1

Under Appendix EU, you can only have a single period of absence of up to 12 months for an ‘important reason’, as set out above. Where you have a second period of absence exceeding 6 months in any 12-month period for an ‘important reason’, you have exceeded the absence permitted under Appendix EU.

However, you can still apply to the EUSS where you can evidence that one of those periods of absence of up to 12 months is because of coronavirus.

But I was not out of UK more than 12 months. Within consecutive year I was out of UK 210 days.

I was out for 5 months and then came back, I did not expect/planned to be out of UK again within that year. But unfortunately I had to leave. As a result I accumulated around 210 days outside in UK within ONE 12-months period.

I believe I can rely on "Absence not intended to exceed 6 months and did not exceed 12 months" - https://www.gov.uk/guidance/coronavirus ... nts#above1

Because My absence during the 12 months period was more than 6 months but less than 12 months.

(I did not use that allowance before)

[kamoe]

But I was not out of UK more than 12 months.

"Up to 12 months" does not mean "more than 12 months". Absences of 1, 4, 10, or 12 months are all absences of "up to 12 months".

I was out for 5 months and then came back, I did not expect/planned to be out of UK again within that year.

Expecting/planning the absence or nor not is irrelevant for that provision. It is allowed in either case, which is nothing but good news to you because it means the provisions are very accommodating. Why would you insist in believing you don't qualifying for that?

I believe I can rely on "Absence not intended to exceed 6 months and did not exceed 12 months" - https://www.gov.uk/guidance/coronavirus ... nts#above1

Your case is about justifying two absences. Sure, you could rely on the non intended absence provision you mention, for one of your absences, then... what do you do with the other? You need to take a global look at it. In my opinion the provision that best describes your situation is the one I mention.

Then again, this is only my interpretation, and this is just to show what there seems to be sufficient allowance for people in situations similar to you.

[kamoe]

But I was not out of UK more than 12 months. Within consecutive year I was out of UK 210 days.

You are looking at the wrong section (sorry, wrong link). New link below:

You have already been absent from the UK for up to 12 months for an ‘important reason’ and now need to be so for a second time, and one of those absences is because of coronavirus: https://www.gov.uk/guidance/coronavirus ... oronavirus

[goodpartner]

But I was not out of UK more than 12 months.

"Up to 12 months" does not mean "more than 12 months". Absences of 1, 4, 10, or 12 months are all absences of "up to 12 months".

I was out for 5 months and then came back, I did not expect/planned to be out of UK again within that year.

Expecting/planning the absence or nor not is irrelevant for that provision. It is allowed in either case, which is nothing but good news to you because it means the provisions are very accommodating. Why would you insist in believing you don't qualifying for that?

I believe I can rely on "Absence not intended to exceed 6 months and did not exceed 12 months" - https://www.gov.uk/guidance/coronavirus ... nts#above1

Your case is about justifying two absences. Sure, you could rely on the non intended absence provision you mention, for one of your absences, then... what do you do with the other? You need to take a global look at it. In my opinion the provision that best describes your situation is the one I mention.

Then again, this is only my interpretation, and this is just to show what there seems to be sufficient allowance for people in situations similar to you.

That's the issue, I don't understand Why my case about justifying two absences? I think I have only one absence.

18 June 2020 - I moved OUT of UK
1 December 2020 came BACK

This trip was within the limit of 180 days, namely it was 161 day.

Then in April 28 2021 I moved OUT of UK
Came back 5th of July

This trip exceeded the limit.

Now, I don't understand why I can not rely on provision "Absence not intended to exceed 6 months and did not exceed 12 months"



I think I wrongly stated and you misunderstood that I had two absences in different 12 months periods.

[kamoe]

Just to be clear: I'm not imposing what your situation is. You are the one who chose to describe your situation as two absences, and I was just addressing your concern:

But My second absence was due to COVID-19 as the first one.

Again, there is sufficient provision for you to justify even the case two absences of more than 6 months, which surely is more than what you need. That is just to say that there is provision to cover you, and that you will likely not be left in limbo.

Also, this is someone else's topic. If you believe you need more clarification, please open your own.

[CR001]

Just to be clear: I'm not imposing what your situation is. You are the one who chose to describe your situation as two absences, and I was just addressing your concern:

But My second absence was due to COVID-19 as the first one.

Again, there is sufficient provision for you to justify even the case two absences of more than 6 months, which surely is more than what you need. That is just to say that there is provision to cover you.

Also, this is someone else's topic. If you believe you need more clarification, please open your own.

This user has their own topic where advice was already given earlier this year foe the same queztion. Yet they continue to hijack other members topics!!!

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