EU Settlement Scheme: Updated COVID-19 Absence Policy

Following a successful challenge by Here for Good, the Home Office has recently updated its EU Settlement Scheme (EUSS) guidance for applicants seeking to apply for settled status in the UK. The initial guidance which was published in December 2020 prevented a significant number of applicants successfully applying for continuity of residence as a result of absence from the UK because of COVID-19. Here for Good sought to challenge the guidance on the basis that it unfairly penalised those who had been genuinely affected by the travel and personal disruption caused by COVID-19. Their challenge was successful and, as a result, the previous guidance was withdrawn on 6 May 2021.

The updated guidance was published last week, which is to be read alongside the EUSS Caseworker Guidance, and means that significantly more EU/EEA/Swiss nationals will now be eligible under the EUSS. This is welcome news for individuals who have been absent from the UK for reasons outwith their control and who otherwise would not have been eligible under the EUSS because of the continuity of residence requirement. Individual’s continuity of residence will not be broken if they have an absence of less than 12 months for an “important reason”. Under the EUSS, there is a non-exhaustive list of what is likely to constitute an “important reason” which includes pregnancy, childbirth and study.

The new guidance now incorporates COVID-19 reasons and will apply to those who:

• have been absent for up to 12 months for an “important reason”;
• intended to be absent for no more than 6 months but their absence of 6 months was exceeded because of COVID-19, but the period did not exceed 12 months;
• have been absent for more than 12 months for an “important reason”; and
• have been absent from the UK for more than 12 months for an “important reason”, now need to be so for a second time and one of those absences is because of COVID-19.

The new guidance confirms that in respect of COVID-19, having been ill with COVID-19, caring for a family member affected by COVID-19, having been in quarantine, having been self-isolating or having been shielding in line with public health guidance will likely be considered to be an “important reason”. The non-exhaustive list of the applicable circumstances is set out in the guidance.

Whilst this shift in position from the Home Office is to be welcomed, it is crucial that the affected individuals act quickly ahead of the looming EUSS deadline of 30 June 2021, which signals the end of the Brexit ‘grace period’. That being said, there is some scope for applications to be considered and approved where they have been submitted late. Given the late publication of the guidance, so long as the individual applies as soon as they become aware that they are eligible, we expect that the Home Office will exercise some discretion in the circumstances.

Next Steps

Individuals should consider the guidance carefully in order to ascertain whether they are now eligible under the EUSS. In doing so, it will be important to consider the nature of any absences and ensure that they have as much evidence as possible to support their application. Such evidence includes, for example, used travel tickets confirming the dates the applicant left the UK and returned, confirmation of flight cancellations and/or correspondence confirming that the individual received a positive COVID-19 result. A list of the acceptable evidence is set out in the guidance. The guidance also states that applicants may be contacted by a caseworker and given the opportunity to provide further information and/or evidence before a final decision is made.