Changes to the Absence Rules for the EU Settlement Scheme

On June 24, a statement of changes was published to amend UK immigration rules. These amendments have changed the definition of the continuous qualifying period for the EU settlement scheme.

From July onwards, there will be another way for a pre-settled status holder to complete a continuous residence period. The existing continuous residence rules will continue to operate, but they are generally considered to be more complex than the new route.

The new absence rule that will apply from 16 July means that if pre-settled status holders can prove they have been resident in the UK for at least 30 months in the last 60 months, they will have completed a five-year continuous qualifying period.

This means that as long as pre-settled status holders have been in the UK for at least two and a half years at some point over the course of the last five years, they will be eligible for settled status.

In this blog, we explain why the new rules have been implemented and how they will work in practice.

Why the change in approach?

The Home Office has recognised that the absence rules for people working towards settled status under the EU Settlement Scheme were overly complicated. This was made worse by the transition period ending during the Covid-19 pandemic, which left many pre-settled status holders at risk of losing their rights despite committing to life in the UK.

Previously, even short absences, such as more than six months in a 12-month period or breaking up a permitted year abroad with a brief return home, could jeopardise an application. The new rule addresses this by requiring residence in the UK for at least 50% of the five-year qualifying period, removing many of the technical pitfalls that were catching people out.

Although not required under the Withdrawal Agreement, the decision to introduce a more flexible domestic rule is a positive step. It will make it easier for pre-settled status holders to secure settled status and should simplify applications by reducing the need to justify longer absences.

Does the new approach apply to both manual and automated cases?

The new approach applies to both. However, although the new approach will apply in manual settled status applications from 16 July, the change could be harder to apply in the automatic process due to the nature of how automation works – by searching National Insurance records.

Therefore, in the interim period, it may be sensible for pre-settled status holders to prove they meet the new rules to make a settled status application, rather than wait for an automated decision.

What if you were not automatically upgraded to settled status before?

If pre-settled status holders have already been considered for an automatic grant of settled status, but this was unsuccessful because they did not have sufficient National Insurance records, it is possible that they could be automatically granted settled status once the new rules are implemented in the automation process.

What if you have already been refused settled status?

Pre-settled status holders who applied but were refused settled status because the Home Office did not accept that they met the existing continuous residence rules can apply again once the new rule is in force from 16 July. If they meet the new rule, they can be granted settled status.

If pre-settled status holders only need to show 2.5 years of UK residence, do you still need to wait for 5 years to apply?

Yes, the requirement that pre-settled status holders have completed a five-year continuous residence period has not changed. This means someone applying/being automatically considered for settled status must have moved to the UK at least five years ago.

There are some limited situations where settled status can be granted for less than five years, but these will be unaffected by the new approach to absences.

Can pre-settled status holders use automatic extensions to meet the new rule?

Yes, the new rule assesses the most recent five-year period from when pre-settled status holders apply manually for settled status, or from the date they are considered for an automatic grant of settled status.

There is nothing in the rule that prevents pre-settled status holders from relying on their automatic extensions to build up the 30 months of UK residence required to meet the new rule.

Does the 60-month period being assessed need to have started before 31 December 2020?

No, but there is a caveat. The new absence rules apply only to those who already hold pre-settled status. To qualify for pre-settled status, an EU citizen must have been resident in the UK by 31 December 2020 (although some family members were able to join later).

This means that even if, from 1 January 2026, the 60-month qualifying period being assessed no longer includes time linked to 31 December 2020, the person’s pre-settled status confirms they were resident before the end of the transition period. As a result, pre-settled status holders applying after that date can still meet the new absence rule.

Do these changes benefit late EU Settlement Scheme applicants?

No, the rules only apply to those who have been granted pre-settled status. As the more flexible approach to absences is not required by the Withdrawal Agreement, there does not seem to be any legal case on this basis that the new rule should apply to late applicants who have reasonable grounds for missing the application deadline.

Does this new approach mean that the Home Office is not going to remove your pre-settled status?

There is nothing about the new approach to absences that prevents the Home Office from removing pre-settled status from people who no longer meet the EU Settlement Scheme requirements, if it is proportionate to do so.

This means pre-settled status holders who have broken continuous residence and no longer meet the continuous qualifying period definition could have their pre-settled status removed.

What about lapsed leave cases?

Pre-settled status holders who were absent from the UK for more than two continuous years before 21 May 2024 are treated by the Home Office as having automatically lost their status, under the rules in place at that time. Since 21 May 2024, however, pre-settled status only lapses after five continuous years of absence.

This could have significant implications for the application of these rules because although the new rules allow for up to 30 months away, anyone whose two-year absence ended before 21 May 2024 is still considered to have lost their status and cannot benefit. For example, a person who reached two years’ absence on 20 May 2024 cannot rely on the new rule, while someone who reached it on 22 May 2024 can.

So, while the new approach is a welcome step, there remain concerns about fairness and consistency, as well as potential legal arguments around whether status should lapse automatically rather than be actively removed.

Speak to our solicitors about changes to the absence rules

If you are unsure how the latest changes to UK immigration rules affect your situation, our specialist immigration lawyers at BHD Solicitors are here to help.

We can provide clear, practical advice about the EU settlement scheme and the recent changes to the absence rules.

Call us on 020 8681 5128 or email enquiries@bhdsolicitors.co.uk to arrange a consultation and protect your immigration status with expert legal support.