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Post Brexit: What does 'continuously resident' mean?
EEA nationals and certain family members who, by 31st December 2020 (or Brexit day if "no deal"), have been 'continuously resident' in the UK for five 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 Annex A of  the Statement of Intent as a 'continuous qualifying period' which basically just means having lived the UK  for a period of five years or more with no gap of six months in any twelve 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 Immigration (EEA) regulations 2016 - ie , permanent residence,worker or retained worker status, or been "self sufficient",  throughout the five years. 
However it will be easier and quicker 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 two years; and if they already have proof of permanent residence status their absence could be as much as five years and they still count as resident.

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

Normally someone who applies for settled status with less than five years' continuous residence will be given pre-settled status which they will later convert to settled status. NOTE pre-settled status does not give entitlement to benefits,

However 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 three years, and in the twelve 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 two 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 three 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 five years  as a family member of an EEA national - although it can be more complicated to prove their residence. And those whose only relationship to an EEA national is that of unmarried partner (ie a "durable relationship") MUST have a residence card. More here.

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

Normally someone who applies for settled status with less than five years' continuous residence will be given pre-settled status which they will later convert to settled status.

However 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 five 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 five 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 five 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"?

Originally these would be unable to apply for pre-settled or settled status, but this was changed by the Statement of Changes to the Immigration Rules (published March 7th 2019.)


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 or "Crown service" (working for the UK government or armed forces abroad); 
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 settled status.

Gov.uk's caseworker guidance here. "Continuous residence" on page 18.






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