Potential Covid implications for those with pre-settled Immigration status

Have you thought about the immigration status implications for an EEA employee currently working overseas during COVID-19 but soon to be called back to work in the UK?

We have been receiving numerous queries about employees who are having lengthy absences from the UK due to the pandemic and the implications of their absence for their EU Settlement Status ("EUSS") applications. We have therefore set out below a brief summary about the risks involved with EEA employees having extended absences from the UK and actions for employers to consider.

What is the background?

It was common practice in early 2020, when the pandemic hit for furloughed EEA employees to go back home, overseas, to be with their family. For those employees who had already obtained "settled" status before leaving the UK under the EUSS, the position was clear: they would have the right to spend up to 5 years outside of the UK without losing that status. However, for employees who are yet to apply for their settled status or those with pre-settled status who were looking to upgrade in the future to settled status under the EUSS, their extended absence from the UK could result in their EUSS application being rejected.

The basic rule is that EEA citizens and their family members will qualify for settled status after completing a "continuous qualifying period of five years' residence" in the UK. Five years continuous residence means that for 5 years in a row they have been in the UK, the Channel Islands or the Isle of Man for at least 6 months in any 12-month period. That is based on a rolling 12-month period and therefore EEA citizens who have left the UK for short periods (i.e. a couple of weeks or months) and then returned to the UK will not have broken their continuous qualifying period. 

The implications if an EEA citizen has spent longer than 6 months outside of the UK

Luckily there are some exceptions to the 6-month basic rule, but they are limited.

The most relevant exception in this situation is where there is a single period of absence outside of the UK, which does not exceed 12 months and has occurred for an "important reason". The Home Office has issued guidance on whether COVID-19 is an "important reason" and the simple answer is yes, but again, only in narrow circumstances. For instance, if the EEA citizen is forced to remain outside of the UK due to travel restrictions, quarantine or COVID-19 related health complications, an absence up to 12 months is likely to be a valid exception, provided appropriate evidence can be provided to support this.

We would suggest that employers inform any of their EEA citizens in this situation that retaining clear evidence that COVID-19 prevented their return to the UK and proof that they came back to the UK as soon as travel was permitted and possible. Thiswill give them the best chance of success with their EUSS application. Examples of evidence could include regular communications with the airline demonstrating they were unable to return to the UK, details from the Foreign and Commonwealth Office showing the travel disruption in their country due to COVID-19 or a letter from their doctor/GP of any COVID-19 related health complication etc.

However, if the EEA citizen made a conscious decision to remain abroad to be closer to their family (which is likely in the majority of cases) absences out of the UK for between 6 -12 months are highly likely to break their continuous qualifying period. As such, those EEA citizens would need to restart the 5-year residence clock, if they want to live and work in the UK. It is important to note that restarting the 5-year residence clock is only an option for those EEA citizens who returned to the UK on or before 11pm on 31 December 2020. If the EEA citizen has returned to the UK since that time or remains overseas, they will likely lose the right to claim settled or upgrade their pre-settled status later down the line, if they’ve been absent from the UK for more than 6 months. Employers with EEA employees abroad (whether furloughed or working remotely) may wish to make contact with those close to having 6 months abroad in the last 12 months, to notify them of the risk of not returning to the UK within the 6-month basic rule.

After all, a business is nothing without its people – so address this point sooner rather than later, in order to have the best chance of retaining your workforce and drive it forward. If you would like to discuss any aspects of this article or have any other immigration queries, please get in touch with our team.

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