News alert: Issues for EU citizens to consider before the end of the year

10 December 2020

As we near the end of a difficult year, EU (and EEA and Swiss) citizens who have already been resident in the UK will be expecting no further issues after the Brexit transition period ends at 11pm on 31 December 2020. They will be clear that so long as they are resident by the end of the year, they can apply to the EU Settlement Scheme before the deadline of 30 June 2021. But there are a couple of issues to be aware of in respect of absences from the UK for those with pre-settled status and those relying on permanent residence to naturalise as a British citizen. 
 
Absences for those with pre-settled status
 
EU citizens who have pre-settled status need to apply for settled status after 5 years in the UK. Pre-settled status is not extendable and so it is important that the residence requirements are met in order to qualify for settled status. Otherwise it will be necessary to switch into a different UK immigration category, such as Skilled Worker. Those with pre-settled status should not be absent for more than 6 months in any 12 month period. A single period of absence of up to 12 months is permitted for an “important” reason which the rules specify includes pregnancy/childbirth, serious illness, study, vocational training or an overseas posting.  
 
So given the circumstances this year, the obvious question is why absences due to the pandemic have not been included in the EU Settlement Scheme rules and guidance. Elsewhere in the rules, absences due to the pandemic have been covered. For example, travel disruption due to the pandemic because there were not any flights or the visa application centres were closed has been a ground for absences above the usual threshold to be allowable on an exceptional basis where they can be evidenced.   
 
The Home Office has advised us that absences over 6 months for those with pre-settled status could be permitted on a discretionary basis if:
 
  • The EU citizen, or a person with whom they are living, is suffering from coronavirus and they are either too ill to travel or forcibly in quarantine for public health reasons; or
  • There were no available flights to the UK and in essence the individual has been stranded overseas. 
A general reluctance to return to the UK is not expected to be sufficient. As a result of this policy, EU citizens with pre-settled status who have had or may shortly have absences of more than 6 months in a 12 month period which is not very clearly for an “important” reason must consider:
 
  • Travelling to the UK before they reach 6 months of absence from the UK;
  • Reapplying from outside the UK for pre-settled status before they reach 6 months of absence; or
  • If they are already over 6 months absence, to return to the UK before 11pm on 31 December so that they could reapply for pre-settled status before the 30 June 2021 deadline next year. 
Relying on permanent residence for naturalisation
 
EU citizens who have been granted a permanent residence document under EU law (not from the EU Settlement Scheme) and held permanent residence for 12 months can normally apply to naturalise as a British citizen. Plus, some applicants’ permanent residence will be backdated meaning they can apply to naturalise straightaway.  
 
EU citizens should though be aware of a rule change from 1 January 2021. For applications submitted in the new year:
 
  • If the applicant only has a permanent residence document and does not have settled status they can continue to rely on the permanent residence document for a naturalisation application. They should ensure they do not become an overstayer on 1 July 2021 by applying for settled status (from the EU Settlement Scheme) before that date if their naturalisation application remains outstanding; and
  • If on the other hand the applicant has both a permanent residence document and settled status, from 1 January they will not be able to rely on the permanent residence document and will instead be required to wait until they have held settled status for 12 months.  Those with both a permanent residence document and settled status now may wish to apply on or before 31 December to naturalise on the basis of their permanent residence document.
We have queried this policy with the Home Office as it appears to be unfair for a number of reasons. Not least that it penalises those who have been diligent in already converting their permanent residence to settled status.
 
If you have any queries in relation to the above issues or any other immigration matter, please contact a member of the immigration team.

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