How absence from the UK may affect your EUSS status

Understanding how absences from the UK can impact EUSS status can be confusing.

We have been told that extensions of pre-settled status and changes to the rules around automatic lapsing of status following time spent outside the UK have potentially added to this confusion.

The rules which govern how long a person with EUSS status can spend outside the UK are different depending on whether you have pre-settled status or settled status.

The Home Office has published guidance on its approach to absences and how it may impact a citizen’s EUSS status.

Settled status

If you have settled status, you can live outside the UK for up to 5 consecutive years without your absence affecting your EUSS status and your ability to return to live and work in the UK.

Pre-settled status

To retain your eligibility for pre-settled status and, after 5 years, be able to qualify for settled status, you will need to show that you have maintained your continuous residence in the UK.

The rules on continuity of residence provide that you can be absent from the UK for up to 6 months in any 12-month period without affecting your continuous residence in the UK or your ability to qualify for settled status.

There are also some circumstances in which an absence from the UK of more than 6 months in a 12-month period will be permitted, such as:

• one period of up to 12 months for an important reason – for example, childbirth, serious illness, study, vocational training, an overseas work posting or because of coronavirus (COVID-19)
• compulsory military service of any length
• time you spent abroad as a Crown servant, or as the partner or child of a Crown servant
• time you spent abroad in the Armed Forces, or as the partner or child of someone in the Armed Forces
• time you spent working in the UK marine area

Separate guidance is available if you were outside the UK for more than 12 months because of COVID-19.

EU and EEA EFTA citizens (and their family members) with pre-settled status who have lived in the UK for at least 5 years and have acquired the right of permanent residence automatically under the Agreements, can also live outside the UK for up to 5 consecutive years without it affecting their EUSS status and their ability to return to live and work in the UK. It is important to note that the right of permanent residence must have been acquired before you left the UK.

Whether, as a pre-settled status holder, you have acquired the right of permanent residence automatically under the Agreements depends on certain conditions being met. For example, if you have worked in the UK as an EU or EEA EFTA citizen for 5 years since before 31 December 2020, then you will have acquired the right of permanent residence. However, in this example, you would need to evidence those 5 years of work in the UK in order to benefit from the right to live outside the UK for up to 5 years. The easiest way to evidence your right to live permanently in the UK (and to live outside the UK for up to 5 years) is to obtain settled status under the EUSS.

If you hold pre-settled status, but do not know whether you have acquired the right of permanent residence automatically under the Agreements and wish to leave the UK for more than 6 months (and without obtaining settled status under the EUSS), then you should seek independent immigration advice on your circumstances from an immigration adviser registered with the Office of the Immigration Services Commissioner (OISC).

In April 2024, the IMA reported on the Immigration (Leave to Enter and Remain) (Amendment) Order 2024. The effect of the Order is that pre-settled status will automatically lapse after more than 5 consecutive years of absence from the UK. Prior to the change, pre-settled status would automatically lapse after more than 2 consecutive years of absence from the UK.

It is important to note that this change is separate to the rules on continuity of residence, which remain as set out above, and does not extend the absence from the UK permitted for a pre-settled status holder to retain their eligibility for pre-settled status and, after 5years, be able to qualify for settled status. If in doubt, you should seek independent immigration advice on your circumstances from an immigration adviser registered with the OISC.

It is also important to note that an extension of pre-settled status does not alter the rules on continuity of residence as set out above. If continuous residence in the UK has been broken, then you may no longer meet the eligibility criteria for your status,  even if you have been granted an extension by the Home Office.

The IMA encourages any EU or EEA EFTA citizen or their family members who believe their rights are not being upheld to submit a complaint to its online portal.

For more information visit the IMA’s website for detailed information on the rights of EU and EEA EFTA citizens and their family members who have applied to the EUSS.

Further information can also be found the FAQs section of our website.