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Pre-settled status: what happens after your absence from the UK?
If you are a EEA national and you were living in the UK before the 31 December 2020, you can ask to be granted pre-settled status. Whilst the official deadline for applications was the 30 June 2021 there can be exceptions. We will not be dealing with the process of obtaining pre-settled status here, and will assume you have already been granted pre-settled status.
The good news is that the status will continue for five years from the date it was granted, meaning that you can live, work and study in the UK during that period. At the end of five years of uninterrupted residence in the UK (from the day you started your continuous residence, not the day you were granted pre-settled status), you will be able to apply for settled status, which in turn will allow you to apply for UK citizenship if you wish to become British.
It all seems clear and straightforward – you arrive here before the “deadline”, you wait for five years and you can get settled “forever”. However, things are not as simple as they might seem at a first glance. In fact, if you leave the UK for more than two continuous years, you will lose your pre-settled status (and if you leave the UK for more than five years you will lose your settled status).
But what happens if you leave the UK for almost two years and return at any time before the end of this period? Will that re-set the clock and grant you an additional five years in the UK, leading to settled status? Or can you simply make occasional trips to the UK every two years and extend your pre-settled status rights indefinitely? This is where things get a bit more complicated.
The immigration rules provide that if you have pre-settled status, you can leave the UK for up to 180 days in any 12 months period (allowed absence) without altering the fact that you are considered a UK resident. Your status would then continue for the five-year term from the date at which it was granted, and at (or before) the end of the term you will be able to convert it into settled status.
However, if you leave the UK for more than 180 days in every 12 months, your uninterrupted residence will be considered as broken. This doesn’t mean that you will lose you pre-settled status. You will be able to come back to the UK and finish the time remaining in the pre-settled status five-year term, but at the expiry of the term you will not be able to convert to settled status. Instead, you will have to leave the country and come back via the same immigration routes as the other overseas nationals. There is in fact no renewing of pre-settled status – either you intend to live in the UK and do so, or you lose your “chance”.
There are of course exceptions to this strict principle, and one is related to the COVID-19 pandemic. If you have been absent from the UK for more than 180 days and it was not by choice, then it may be possible for the Home Office to consider your case. However, this absence cannot exceed 12 months and beyond that term it is very unlikely that the Home Office will consider granting an exception.
To avoid unwanted immigration, employment, commercial and tax consequences it is indispensable to give careful thought to the new immigration rules and post-Brexit legal environment. Please do not hesitate to contact our Immigration, International, Employment and Commercial teams that are well placed to advise you.
Sarah Marangoni is tri-lingual and dually qualified as French Avocat & English Solicitor. She is a Consultant with Buckles Solicitors LLP in alliance with CastaldiPartners and works with our London, Paris and Milan offices.