Here is what you need to know about leaving the UK after gaining settled status.
I have settled status, what does returning to the UK within 5 years mean?
The Withdrawal Agreement allows for those who have obtained permanent residence (including a grant of settled status), to be away from the UK for up to 5 years continuously without losing their status. The question that is often asked is what does return to the UK within 5 years actually mean? Does it mean the settled status holder must come back to live in the UK within 5 years of leaving, or does it mean a short trip back to the UK (perhaps even for only one day), is good enough to effectively “reset” the 5-year clock?
Although the Withdrawal Agreement does not explicitly say what returning to the UK within 5 years means, the Court of Justice of the European Union – the Court that has the final say interpreting EU law, including EU law referred to in the Withdrawal Agreement – has given a decision that helps us to understand the 5 year rule. Even though the decision given by the Court was not specifically about the Free Movement Directive (which forms the basis of the Withdrawal Agreement), as the Court was interpreting how EU law principles are applied, the decision can be used to understand how the Free Movement Directive and the Withdrawal Agreement works.
One important point to be aware of when considering how Court of Justice of the European Union cases affect EU citizens and family members in the UK, is that the Withdrawal Agreement requires the UK to have “due regard” to decisions made by the Court made after 31 December 2020. This means that a decision does not bind the UK if there is a justification for the UK to take a different approach. Therefore, we cannot definitely say a decision from the Court of Justice of the European Union that is made after 31 December 2020 will be followed in the UK, but that in most cases it should be.
The decision of Court that helps us understand the 5-year absence rule was given after 31 December 2020 and is therefore is for guidance, rather than something that must be followed by the UK. The Court found that that people who hold long-term permanent residence status (i.e. settled status), will not lose their resident status if they return to the host state (the UK), within the time period specified (within 5 years under the Withdrawal Agreement). Returning to the host state – and this is the important part – is satisfied even if that return is only for a short period of time, which could be as little as a few days. The Court is saying that a person with permanent residence does not need to return to live in the country that granted them the residence status to keep that status, as short visits back to the country that happen within the time they are allowed to be absent (i.e. within the 5 years), is enough to reset the clock. In other words, as long as a person with settled status comes back to the UK within 5 years from when they last left, they reset the 5-year clock even if they only spend a few days in the UK. It is important not to spent more than 5 years outside the UK as this may result in the person losing their settled status. The Court also warned that this rule does not apply if a person has “committed a misuse of rights”, though there was no explanation in the Court decision of what a misuse of rights meant.
Based on the Court’s interpretation this is an example of how the 5-year absence rule works: If you were granted settled status in 2020 and on 1 January 2023, you leave the UK to go and work in another country, as long as you return by 31 December 2027 you will keep your settled status. You will keep settled status even if you only come back to the UK for a few days in December 2027 and then leave again.
When calculating the 5-year absence allowance, please be aware that the date that you left the UK is the relevant date, rather than the date that you were granted settled status. For example: if you lived in the UK between 2014 and 2019 (for 5 continuous years), and then you left the UK and were granted settled status in 2021 when you were outside the UK, you need to count your 5 year absence clock from the date you left the UK in 2019, even though your grant of settled status came later on in 2021. In this example, you would need to return to the UK by 2024 to maintain your settled status (within 5 years of leaving the UK in 2019).
It is recommended that if you intend to live outside the UK for extended periods, you should keep a record of your travel back to the UK, so that you can prove that you have not been outside for more than 5 years continuously. You may not be able to rely on records from the UK border to show when you have entered the UK and therefore, you should keep travel tickets and bookings from trips to the UK, evidence of where you stayed when you were in the UK (for example hotel or accommodation receipts) and records of spending money when you were in the UK (bank statements or credit card statements).
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This site offers information about Brexit, how it may impact you as an EU citizen and your family living in the UK, and what you may need to do next. It summarises key issues and is purely for information purposes and has no legal force. It does not provide any legal interpretation of EU or UK legislation and is not meant to replace specialised legal advice on UK immigration rules.