Friday 16 May 2025

The EU Settlement Scheme (EUSS) has enabled EU nationals and their family members living in the UK prior to 31 December 2020 to apply for immigration permission to remain in the UK after Brexit. Individuals unable to show they lived in the UK for five years to qualify for a grant of settled status, could obtain pre-settled status instead. Automatic extensions of pre-settled status have been introduced as well as automatic conversions to settled status for individuals who have five years of National Insurance records.

Until 21 May 2024, pre-settled status automatically lapsed if the holder was absent from the UK for a continuous period of more than 2 years. Since 21 May 2024, pre-settled status will only lapse if the holder has been absent for 5 continuous years. But does this mean that you can leave the UK as a pre-settled status holder for several years and return without any issues?

The immigration rules state that a person’s pre-settled status may be cancelled on or before their arrival in the UK where the Secretary of State or an Immigration Officer is satisfied that it is proportionate to cancel that leave where they cease to meet the requirements (for their status). Pre-settled status may therefore be lost where an individual breaks the continuous residence requirement that they spend no more than 6 months outside the UK during any 12-month period.

The decision to cancel pre-settled status must be proportionate, which is defined as ‘appropriate and necessary’. It must be specific to the individual in question, taking into account all relevant facts and circumstances including the consequences of the cancellation for the individual.

Current Home Office guidance contains a non-exhaustive list of factors to be considered in the proportionality assessment. These include whether the individual can reasonably be regarded as resident in the UK, the length of their residence, and ties to the UK including family, work, study and private life. Other important considerations include the impact of the decision on others, the best interests of any children and whether the circumstances provisionally justifying cancellation are likely to be temporary. An explanation may therefore be provided setting out why the reason(s) for any absences exceeding six months were due to circumstances which have now changed.

Whilst the cancellation of pre-settled status is not automatic for individuals who have spent more than 6 months outside the UK during a 12-month period, they need be aware that they can lose their status if they are spending significant periods of time outside of the UK and it is considered proportionate for their status to be cancelled.

Get in touch

If you are a pre-settled status holder and this impacts you, we shall be pleased to advise further. If you do not have an assigned LDI lawyer, you can email enquiries@lauradevine.com. You can also sign up to our mailing list  for the latest news and updates.