Can I lose my pre-settled status if I am away from the UK for too long?

The Withdrawal Agreement allows for limited situations where residence rights / status – granted via pre-settled or settled status under the EU Settlement Scheme (EUSS) – can be lost or taken away by the Home Office. This includes situations where a pre-settled status holder “breaks” the residence conditions before permanent residence is acquired or settled status is granted. In other words, the Home Office can remove the pre-settled status if the status holder has been absent from the UK for too long. 

In this situation Home Office can only remove the pre-settled status if it is proportionate to do so. This means the reasons for the extended absence(s) from the UK must be assessed, along with consideration of the impact that losing status will have on the person concerned (including the impact on their family). There are important safeguards that apply to having EUSS status removed including the right to appeal the decision to the Immigration Tribunal. The specific terms for removing pre-settled status in this situation are “curtailment” or “cancellation” decisions. Generally, curtailment and cancellation mean the same thing, that the pre-settled status is being removing by the Home Office. However, there are some important differences between a curtailment or cancellation decision in the context of appeal rights (see under the heading Appealing a curtailment or cancellation decision).  

What is the curtailment/cancellation process – simple overview: 

The process explained under the next two headings only applies to adult EU/EEA/Swiss citizens whose pre-settled status was granted based on them being resident in the UK by 31 December 2020 To see a visual of how the process works please clink here. The situation for sponsored family members and other pre-settled status holders is different and explained under the below heading “Are family members and others subject to curtailment / cancellation as well?”.

• Pre-settled status holder approaches the expiry date of their status
• The Home Office will either automatically grant settled status or extend pre-settled status for 5 years
• The Home Office will identify pre-settled status holders with the longest absences from the UK for potential curtailment / cancellation
• The Home Office will contact these pre-settled status holders with a minded to curtail notice asking for evidence and information about their residence situation
• The Home Office will consider any evidence and information provided to decide: 
  1. If either of the continuous residence conditions have been met (settled status granted)
  2. If it is disproportionate to remove EUSS status (pre-settled status retained)
  3. If neither 1 or 2 satisfied curtailment / cancellation decision issued
• If curtailment / cancellation decision issued there is a right of appeal to the Immigration Tribunal 

What is the curtailment/cancellation process – detailed overview: 

• Pre-settled status holder approaches the expiry date of their status.
• The Home Office assesses whether their tax and benefit data (National Insurance records) show 5 years continuous residence (i.e. 30 months of residence in the last 60 months). 
  • If so they are granted settled status
  • if not they receive a 5-year pre-settled status extension.
• For those who receive the 5-year pre-settled status extension the Home Office then assesses travel data combined with the tax and benefit data to see if this shows 5 years continuous residence 
  • If so they are granted settled status
  • If not the pre-settled status holder is flagged for potential curtailment consideration. 
• The Home Office will substantively consider pre-settled status holders with the longest absences for curtailment / cancelation first. Cases that are not selected for substantive consideration will retain the pre-settled status extension. 
• Cases that are selected for substantive consideration will receive a minded to curtail notice asking for evidence and information about their residence situation. 
• The person has 28 days to respond although they can request an extension of time if needed to gather more evidence. 
• After the timeframe to respond has passed the Home Office will consider any evidence and information provided. If more information is needed the Home Office can request this from the pre-settled status holder. 
• Once all the information and evidence is gathered the Home Office will decide: 
  1. If either of the continuous the residence conditions have been met (settled status granted)
  2. If it is disproportionate to remove EUSS status (pre-settled status retained)
  3. If neither 1 or 2 satisfied curtailment / cancellation decision issued
• If curtailment / cancellation decision issued there is a right of appeal to the Immigration Tribunal 

Are family members and others subject to curtailment / cancellation as well? 

As sponsored family members and others granted pre-settled status based cannot automatically be upgraded to settled status (see section Which pre-settled status holders cannot be automatically upgraded?) the curtailment/cancellation process also treats them differently. All persons in the following categories will receive a 5-year extension to their pre-settled status:

• non-EEA family members (resident in the UK by 31 December 2020) 
• joining family members (of any nationality who arrived in the UK on or after 1 January 2021) 
• children under the age of 18 
• those relying on ‘retained rights of residence’
• status granted on the basis of ‘derivative rights’ 
• pre-settled status holders who have also been granted a different immigration status 

Persons who fall under these categories will not be assessed for curtailment/cancellation based on absences from the UK. They can make a manual application for settled status once they meet the eligibility criteria. 

However, if their pre-settled status is linked to an EU/EEA/Swiss sponsor (e.g. they are a sponsored family member) and that sponsor’s pre-settled status is curtailed or cancelled, it is likely the Home Office will send them a minded to curtail notice to determine if their pre-settled status should also be curtailed or cancelled. In some cases it may be that they continue to qualify for EUSS status however, the situation is likely to be complicated and so it is recommended you speak to a qualified and regulated legal adviser about your situation to understand what action you need to take. We have provided more information about finding a qualified and regulated legal adviser in the section Where can I find regulated immigration advice?

What happens if I receive a ‘minded to curtail’ notice? 

You will receive a minded to curtail notice if the Home Office has assessed that you have significant absences from the UK following a review of your tax and benefit records (using your National Insurance number if you have one) and your travel data (e.g. (e.g. looking at travel in and out of the UK to determine periods of UK residence). You will be asked in the minded to curtail notice to provide information and evidence to the Home Office to show either: 

1. That you meet the continuous residence conditions or, if you do not meet these conditions; 
2. Reasons why it would be disproportionate to remove your pre-settled status. 

If you can show you meet the continuous residence conditions, then you do not need to show that it would be disproportionate to remove your pre-settled status. The minded to curtail notice will normally give you 28 days to provide information and evidence to the Home Office for consideration. If you need more time to provide a response to the Home Office in the first instance you should contact the Home Office Resolution Centre to request an extension of time. If having had an extension of time you need more time to provide a response you will need to provide a detailed explanation to the caseworker of why you need more time. It is at the discretion of the caseworker whether to grant more time. 

It is possible that after you have provided evidence and information to the caseworker that more information may be requested. Once the caseworker has all the information and evidence about your situation they will make a decision on your case: 

1. If either of the continuous the residence conditions have been met then settled status will be granted.
2. If it is disproportionate to remove EUSS status your pre-settled status extension is maintained. 
3. If neither 1 or 2 is satisfied then a curtailment / cancellation decision will be issued.

What travel data does the Home Office look at and is it reliable? 

The Home Office uses travel data to establish residence / absence from the UK. The guidance on curtailment and cancellation does not explain exactly how the travel data is generated, but it is likely to relate to information provided by carriers to the Home Office about passengers coming to and leaving the UK (known as Advanced Passenger Information), as well as information gathered at the UK border (e.g. through the eGates or immigration desks). Importantly, the Home Office acknowledges that travel data might not be completely accurate, particularly in relation to exits from the UK.

In short, it may be that the information that the Home Office relies on to indicate that you have been absent from the UK could be wrong, which could lead to the incorrect conclusion that you have broken your continuous residence. As set out in the next section, if you believe that you meet the continuous residence rules it will be important to address this in your response to the minded to curtail notice. 

How should I respond to a ‘minded to curtail’ notice to show I meet the residence conditions? 

As noted, you will receive a minded to curtail notice if the Home Office has assessed that you have significant absences from the UK. This means the Home Office does not believe that you meet either of the continuous residence rules: 

1. 30 months of residence in the last 60 months (explained in more detail here), or; 
2. 6 months of residence in each 12 months over a continuous period of 5 years (which can be in the past), with some limited exceptions for longer absences (explained in more detail here). 

If you believe that you do meet either of the above continuous residence rules, you should reply to the minded to curtail notice setting out how you meet the rules and providing evidence of your UK residence (see the Home Office guidance on evidence of UK residence). If the Home Office accepts that you meet the continuous residence rules you should be granted settled status. 

How should I respond to a ‘minded to curtail’ notice to argue it is disproportionate to remove my pre-settled status? 

If you do not meet either of the above continuous residence rules, the Home Office must assess whether it would be disproportionate to remove your pre-settled status based on your individual circumstances. The Home Office will look at two areas to assess proportionality:

• The circumstances surrounding your absence or absences from the UK.
• Relevant factors about the impact to you if your pre-settled status is removed. 

Circumstances relating to absences from the UK include:   

• Any relevant reason or reasons you had for leaving the UK throughout the relevant period.
• The amount of time by which you have broken your continuous qualifying period by.
• Any relevant reason or reasons why you did not return to the UK earlier.

Relevant reasons may include (but are not limited to):  

• Illness or medical emergency
• Caring responsibilities
• Travel delays
• Overseas employment 
• Overseas training or education course

The Home Office generally takes the view that the longer you have been outside the UK beyond the permitted absences, the more substantive reason(s) you must show for not maintaining continuous residence and for not returning to the UK earlier. 

If the case worker decides that your reasons for being absent from the UK show that it would be disproportionate to remove your pre-settled status, the assessment is concluded and you will be notified that your 5-year pre-settled status extension will be maintained. 

If the case worker decides that your reasons for being absent from the UK do not show that it would be disproportionate to remove your pre-settled status, they will then consider other relevant factors to assess the impact of removing your pre-settled status. Relevant factors may include (but are not limited to):  

• Your age
• Your state of health
• Vulnerabilities (such as disabilities, homelessness, victims of domestic abuse / violence)
• Whether you can reasonably be regarded as resident in the UK
• The length of time you resided in the UK, both in terms of duration and as a proportion of your life
• The ties you have to the UK, including family (and whether family members, such as dependants, will be impacted, paying particular regard to the best interests of affected children)
• Work, study and private life
• The ties you have to your home country
• Any specific compelling compassionate circumstances relating to you or your family
• Your economic situation
• Integration in the UK

If the Home Office, after assessing your information and evidence decides that it would be disproportionate to remove your pre-settled status, you will be notified that your 5-year pre-settled status extension will will be maintained. If you then complete 5-years continuous residence where you are resident in the UK for 30 months in the most recent 60 months, you can apply to be upgraded to settled status. If you do not do anything then when your pre-settled status approaches the new expiry date in 5 years’ time, you will again be considered for an automatic conversion to settled status, or potentially, you will be contacted again to determine if it would now be proportionate to remove your pre-settled status. 

Proportionality is a complicated area and therefore, if you do not meet the continuous residence rules but believe that is may be disproportionate to remove your pre-settled status then we recommend you speak to a qualified and regulated legal adviser about your situation to understand what action you need to take. We have provided more information about finding a qualified and regulated legal adviser in the section Where can I find regulated immigration advice?

Appealing a curtailment or cancellation decision 

If the Home Office after assessing all your information and evidence decides to curtail or cancel your pre-settled status you have the right to appeal this decision. An appeal is made to the Immigration Tribunalwhere independent immigration judge will decide the case and issue a written judgment saying whether the Home Office decision is correct. If the Immigration judge decides that the curtailment or cancellation was not correct, then they will substitute a new decision telling the Home Office you continue to be eligible for EUSS status. 

Although the reasons why the Home Office can make a curtailment or a cancellation decision are the same (i.e. that you do not meet the continuous residence rules and that it would not be disproportionate to remove your status), there is significant distinction between the two decisions that it is important to be aware of. 

• Curtailment decisions are made when the Home Office thinks that you are inside the UK. If you appeal against a curtailment decision you will keep your pre-settled status until the appeal is concluded. 

• Cancellation decisions are made when the Home Office thinks that you are outside the UK. You will lose your pre-settled status immediately if you receive a cancellation decision and your pre-settled status will only be reinstated if your appeal is successful. 

Additionally there are different time limits for notifying the Immigration Tribunal that you want to challenge the Home Office decision depending on whether you receive a curtailment or cancellation decision: 

• If the Home Office curtails your status you can appeal to the Immigration Tribunal within 14 days from the date the decision was sent to you by the Home Office. 

• If the Home Office cancels your status you can appeal to the Immigration Tribunal within 28 days from the date you receive the refusal decision from the Home Office. 

In some situations, it may be possible to apply outside of these deadlines. However, you would need to have a very good reason for missing the deadline and therefore, it is extremely important wherever possible to challenge the decision within the given timeframe. If you are appealing late you must explain to the Immigration Tribunal why you missed the deadline. A decision will be made on whether you have a good reason for appealing late and if so, the appeal will be allowed to proceed. You can see more information about appealing to the Immigration Tribunal here.

What happens if my pre-settled status is removed? 

If your pre-settled status is curtailed or cancelled and either you do not appeal against the decision, or you appeal against the decision but the Immigration Tribunal agrees with the Home Office decision, then you will no longer have lawful immigration status in the UK. This means that you no longer have rights such as the right to work and receive free NHS treatment. You will also be at risk of enforcement activity from the Home Office to require you to leave the UK. If you are outside the UK and your pre-settled status is removed, you need to ensure you have the correct immigration permission if you intend to come to the UK in the future. 

If you wish to remain in the UK after your pre-settled status has been removed, it is extremely important that you speak to a qualified and regulated legal adviser about your situation to understand if there are any alternative immigration routes for your and if so, what action you need to take. We have provided more information about finding a qualified and regulated legal adviser in the section Where can I find regulated immigration advice?

What happens if my pre-settled status is removed but I was not aware that this happened? 

If your pre-settled status is curtailed or cancelled and you were not aware of this happening, for example because you did not receive any communication from the Home Office about the decision to remove your status, it may be possible to apply to reinstate your status if you can show the Home Office decision was incorrect. However, this is a complex situation and therefore, it is extremely important that you speak to a qualified and regulated legal adviser about your situation to understand what action you need to take. We have provided more information about finding a qualified and regulated legal adviser in the section Where can I find regulated immigration advice?

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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.