Under Annex 3 of Appendix EU and Annex 3 of Appendix EU (Family Permit) there are discretionary grounds, as listed in the Cancellation and curtailment of limited leave to enter or remain granted under Appendix EU or leave to enter granted under Appendix EU (Family Permit) table, under which a person’s limited leave to enter (LTE) by virtue of having arrived in the UK with an entry clearance that was granted under Appendix EU (Family Permit), or leave to enter or remain (LTE / LTR) granted under Appendix EU, may be cancelled or curtailed where Home Office is satisfied that it is proportionate to do so.
Under Directive 2004/38/EC (“the Directive”), residence rights can be restricted where an individual no longer meets, or never met, the necessary conditions for residence, including where there has been fraud relating to evidencing a right of residence or where there has been a misuse of a right of residence. Residence rights can also be restricted on grounds of public policy, public security or public health.
EUSS cancellation or curtailment due to identified excess absences from the UK
A pre-settled status holder must remain continuously resident in the UK and Islands to maintain their pre-settled status and to qualify for settled status under Appendix EU.
How will excess absences be identified? – The Home Office has been operating a process to automatically convert eligible pre-settled status holders to settled status where possible, without a valid application having been made.
Under this process, the Home Office first conducts checks against tax and benefit data to verify a person’s continuous residence in the UK, as well as reviewing any evidence of criminal conduct. Where the Home Office can establish eligibility for settled status, their digital status will be automatically converted to settled status and the person will be notified of this.
Where the Home Office is unable to confirm eligibility for settled status through these checks, a prioritisation process is then applied using Home Office travel data to determine which pre-settled status holders no longer meet the requirements due to periods of absence from the UK of more than 30 months in the most recent 60-month period from the UK. Those identified with the longest periods of absence from the UK in the most recent 5-year period will be prioritised, and the case will be referred to a caseworker to consider whether it might be appropriate to cancel or curtail the pre-settled status. When reviewing the case, Home Office must examine tax and benefit records, and Home Office travel data before pursuing curtailment.
Proportionality – Circumstances surrounding the absence or absences from the UK
Where a pre-settled status holder has exceeded the permitted absence threshold, meaning the balance of residence and absence from the UK satisfies you that it may be suitable to curtail or cancel their pre-settled status, Home Office must consider the circumstances surrounding the excessive absences from the UK before curtailment or cancellation is pursued. This consideration must include:
- any relevant reason or reasons the person had for leaving the UK throughout the relevant period
- the amount of time by which the person has broken their continuous qualifying period (as outlined in Appendix EU)
- any relevant reason or reasons the status holder 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
Relevant evidence Home Office considers
Generally, the longer the period in which the status holder was outside the UK, beyond the permitted absences, the more substantive reason or reasons the person must present for not maintaining their continuous qualifying period in the UK and not returning to the UK earlier.
Relevant evidence may include:
- a dated and signed employer letter confirming the duration of a period of employment undertaken outside of the UK, and evidence that employer is genuine, for example their Companies House number
- letter or certificate from a school, college, university or other accredited educational or training organisation showing the dates of enrolment, attendance and course completion
- invoice for fees from a school, college, university or other accredited educational or training organisation and evidence of payment
- letter from a hospital or other healthcare professional confirming a hospital stay or appointments the person has attended
- a dated and signed letter from a registered care home confirming residence
- a letter from an overseas government department, public service or charity showing the person dealt with them on a particular date or for a particular period
This list is non-exhaustive and other evidence can be considered. The documents should be from an official or impartial source.
You cannot accept:
- photos and videos
- letters or references from family and friends
- greeting cards or postcards
- personal scrapbooks
Decisions on the EUSS status
If after considering the available evidence Home Office is satisfied the person has resided in the UK for at least 30 months in the most recent 60 months or has maintained their continuous qualifying period by not being absent for more than 6 months in total in any 12-month period for 5 years (with some exceptions – see the ‘Continuous qualifying period’ section in EU Settlement Scheme EU, other EEA, Swiss citizens and family members), they must grant them settled status. They will be notified of this, and their digital status will be updated automatically to reflect this.
Alternatively, if, having considered the reasons for the absence and the relevant evidence,Home Office do not think it is proportionate to cancel or curtail pre-settled status, a notification will be issued to the individual informing them of that decision and confirming that they maintain their pre-settled status. They must be resident in the UK for at least 30 months in total in the most recent 60-month period to become eligible for settled status. A person who holds pre-settled status can make an application for settled status as soon as they are eligible for it.
If, having considered the reasons for the absence and the relevant evidence, Home Office think it may still be proportionate to proceed to cancel or curtail status on the basis of excess absences from the UK, Home Office must then consider whether there are any other relevant factors which mean it would not be proportionate to cancel or curtail pre-settled status. See: Other relevant factors which would affect the impact of a curtailment or cancellation decision on the status holder.
Where Home Office decide it would not be proportionate to cancel or curtail a person’s pre-settled status, Home Office must maintain the individual’s leave by checking the relevant box on the caseworking system. A notification will be sent automatically to the individual informing them of this outcome and will set out how they may become eligible for EUSS settled status (ILR). They must be resident in the UK for at least 30 months in total in the most recent 60-month period to become eligible for settled status. A person who holds pre-settled status can make an application for settled status as soon as they are eligible. Alternatively, they may wait for their eligibility for settled status to be considered when their case is reviewed again under the EUSS automated process.
Minded to cancel notice and appeal
In a case where the person appears to have ceased to meet the requirements of Appendix EU due to excess absences from the UK in which you decide that, having reviewed all the information available to you, it is appropriate to pursue cancellation or curtailment of a person’s leave, you must first issue a ‘minded to curtail’ notification to the individual. The ‘minded to curtail’ notification will also serve as a request for the individual to submit information and evidence demonstrating that they are eligible for indefinite leave to remain (ILR) under the EUSS (settled status), or that it would not be proportionate to cancel or curtail their leave granted under the EUSS.
Additionally, the person must provide evidence confirming whether they are currently inside or outside the UK, to ensure the appropriate decision can be made on whether to cancel or curtail their leave. The notification will also make clear that any decision to remove pre-settled status will be subject to a right of appeal.
The individual will be given 28 calendar days to provide evidence through the link provided in the ‘minded to curtail’ notification.