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Post Brexit: What does 'continuously resident' mean?
EEA nationals and certain family members who, by 31st December 2020, have been 'continuously resident' in the UK for 5 years, can apply for settled status and therefore will be able to claim benefits including Universal Credit.

But what does "continuously resident" mean?

'Continuously resident' is referred to in the Draft Regulations as a 'continuous qualifying period' which basically just means having lived the UK  for a period of 5 years or more with no gap of 6 months in any 12 month period. Some longer gaps will be allowed where there are "important reasons" for being absent, and some people (certain prisoners and those due to be deported) will be excluded. More detailed explanation under 'Summary of meaning of continuous qualifying period' at the end of this page.

The government has said it is taking a "light touch" approach. The Statement of Intent says that applicants for settled status: 
"...will not be required to show that they meet all the requirements of current free movement rules, such as any requirement to have held comprehensive sickness insurance or generally to detail the exercise of specific rights (e.g. the right to work) under EU law. The UK has decided, as a matter of domestic policy, that the main requirement for eligibility under the settlement scheme will be continuous residence in the UK. "
 

This means that, in order to apply for settled status, the EEA national / family member does not need to have had a "right to reside" under the EU regulations - ie , permanent residence,worker or retained worker status, or been "self sufficient",  throughout the 5 years. However it will be easier and quicker (and with no £65 fee) for those who already have proof of permanent residence status.

What if they are not in the UK on 31st December 2020?

The Statement of Intent says that if someone is not in the UK on 31st December 2020 but has previously been resident in the UK, they may still count as continuously resident eg if they are on holiday or working temporarily abroad- this could be up to 2 years; and if they already have proof of permanent residence status their absence could be as much as 5 years and they still count as resident.

Can an EEA national be eligible for Settled Status with less than 5 years' continuous residence?

If the person is an EEA national who has been living in the UK since before 31st December 2020, they will be eligible for settled status with less than 5 years' continuous residence, if they:

(a) Have retired from work or self employment. This only applies where they had a right to reside for at least 3 years, and in the 12 months immediately before retiring this was a right to reside as a worker; and they retired when they reached state retirement pension age or, if they were an employed worker (not self employed) the date could have been before state retirement age - ie they took early retirement.

(b) Are permanently incapacitated. This only applies where they had a right to reside in the UK for at least 2 years before stopping work/self employment due to permanent incapacity unless the incapacity was from an accident at work or an occupational disease (so long as the accident /disease means they could get "a pension payable in full or in part by an institution in the UK"); or

(c) They have been working* in another EU country. This only applies where, immediately before their work abroad they had a right to reside as a worker for at least 3 years as a worker or self-employed person, and they retained a place of residence in the UK to which they returned, as a rule, at least once a week. (*Assuming these rules are the same as the rules about "workers who have ceased activity" in the EEA regs, which say "active as a worker or self-employed person " it sounds like they must be actually working in the EU country to qualify.)

Note that if the EEA national is the spouse or partner of a British citizen then where they qualify under (a) (retired) or (b) (permanently incapacitated)  they are not restricted by the rules about length of time as a resident or as a worker.

What about family members of EEA nationals who are not EEA nationals themselves?

These people will also be able to apply for settled status if they can show that they have been continuously resident for 5 years - although it can be more complicated to prove their residence. More here.

What about family members of EEA nationals with less than 5 years' continuous residence?

If the person is a family member of an EEA national who has been granted settled status, they will also be eligible for settled status with less than 5 years' continuous residence if:

  • they were the EEA national's family member at the point that the EEA national became eligible to apply for settled status with less than 5 years residence (eligibility criteria as for EEA nationals, above), and
  • they are currently continuously resident in the UK. 

What if the EEA national / family member ceases to be continuously resident in the UK?

If they have ceased to be continuously resident they can apply for "pre-settled status" (ie working towards 5 years' continuous residence) if they start being continuously resident again, by 31st December 2020. 

What about EEA nationals and family members whose only right to reside is a "derivative right"?

EEA nationals and family members whose right to reside is only though a "derivative right  (for example through being the primary carer of an EEA national child in education) will not be able to apply for 'settled status' under the EU Settlement scheme but it appears they will have their rights to benefits protected while they keep their derivative right: according to the Statement of Intent:
"The ..derivative residence rights of primary carers (of EEA national children in education) will be protected for as long as the child requires the primary carer's presence to continue or complete their education".

We assume what this means is that once they lose the derivative right, eg when the child leaves education they will lose their right to claim benefits.

However it appears that, while they have the derivative right,  they will be able to apply for an immigration  status that might allow them to claim benefits: a government statement on May 16th stated:
"...provision will be made for them elsewhere in the Immigration Rules to apply for leave to remain in line with their current rights."


Summary of meaning of 'continuous qualifying period' from Draft Regulations.

A period of residence in the UK:
(a) which began before midnight on 31st December 2020 (or, for family members of EEA nationals, after that date, if they AND
they hadn't been absent from the UK for more than six months in any 12 month period, with some exceptions. 
Exceptions:
1) a single period of absence of under 12 months due to "an important reason" eg pregnancy, childbirth, serious
illness, study, vocational training or an overseas posting); or
2) any period of absence on compulsory military service; 
AND
3) They aren't in prison in the UK (some exceptions)
AND
they're not due to be deport or excluded from the UK (some exceptions).

If the period is less than 5 years the period of continuous residence must still be continuing at the date of application for setlled status.







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