Help, can i come back to the UK, if I've been granted pre-settled status but been out of the UK for over 6 months?

Hi all. This platform has been a great help to me over the past few years and I would like to reach out again for some advice. Unsure if this is the right place for my question, so please let me know if not!

I am Australian and have been living with my Italian partner in the UK since 2014. I was granted pre-settled status and he was granted settled status, both in 2019. When the pandemic hit last year, we made the decision to leave the UK and left in July 2020 to move to his hometown. We got married at the beginning of the year and I was granted Italian residence as a spouse.

For the most part, we intend to stay and settle here in Italy. I have been fortunate to keep my job with the UK employer I've been working for since 2018, who has allowed me to keep working from Italy. Its likely (but not yet 100% confirmed) that my employer will continue to allow me to work remotely, with an expectation that I return to the UK for work periodically (less than 30 days in a tax year). However I'm not so sure I can make things work in Italy...

So I was wondering, in general, what does this mean for me, if I want to head back to the UK to live again, whether that be alone, or together?

The UK gov site states "If you have pre-settled status, you can spend up to 2 years in a row outside the UK without losing your status. You will need to maintain your continuous residence if you want to qualify for settled status."

Does this mean I can come back to the UK to live, as long as its within 2 years? Or do i have until the end of the pre-settled status period (which is 2025) and just wont be able to qualify for settled status?

Feel a little trapped to be honest as i know its virtually impossible to get back home to Australia at the moment (also can't afford it!). But am also worried i won't be allowed to return to the UK, especially if my husband and I are separated. I'm not talking about divorce but just a break... And of course if it all goes to crap, I'm pretty sure a divorce will mean i need to seek sponsorship from my UK employer to stay in the UK, if i'm even allowed back in!

Not really sure where i can go, apart from stay in Italy ... sorry if this is all a bit rambling. I just really don't know what I can do if things really do go south with my relationship...

PeatD wrote: ↑

Sun May 09, 2021 2:40 pm

I have been fortunate to keep my job with the UK employer I've been working for since 2018, who has allowed me to keep working from Italy.

Has your employer continued to contribute to your UK National Insurance, and have you continued to pay UK tax and National Insurance in the UK while you work in Italy?

kamoe wrote: ↑

Sun May 09, 2021 5:39 pm

PeatD wrote: ↑

Sun May 09, 2021 2:40 pm

I have been fortunate to keep my job with the UK employer I've been working for since 2018, who has allowed me to keep working from Italy.

Has your employer continued to contribute to your UK National Insurance, and have you continued to pay UK tax and National Insurance in the UK while you work in Italy?

@kamoe I know you have said before about using the NI even though they have been outside the UK for more than 6 months, but...

"The applicant simply needs to self-certify they’ve spent no more than six months outside the UK in any 12-month period.

This suggests a more relaxed approach to absences than the Home Office adopts in other types of settlement. That said, the Home Office will have a record of travel where eGates have been used at airports and where travel has been stamped in a passport, meaning that honesty is always the best policy."
https://www.freemovement.org.uk/lengthy ... s-at-risk/

kamoe wrote: ↑

Sun May 09, 2021 5:39 pm

Has your employer continued to contribute to your UK National Insurance, and have you continued to pay UK tax and National Insurance in the UK while you work in Italy?

So I've been continuing to pay UK tax and NI since i left last year. But I've now been deemed a non-UK tax resident, for this tax year and going forward so have been issued an NT tax code as of last month. But UK National Insurance continues to be paid by my employer at the moment. I'm still working through the Italian side of things, so I'm unsure if UK NI will continue or not once the italian obligations are in place..

JB007 wrote: ↑

Sun May 09, 2021 5:59 pm

kamoe wrote: ↑

Sun May 09, 2021 5:39 pm

PeatD wrote: ↑

Sun May 09, 2021 2:40 pm

I have been fortunate to keep my job with the UK employer I've been working for since 2018, who has allowed me to keep working from Italy.

Has your employer continued to contribute to your UK National Insurance, and have you continued to pay UK tax and National Insurance in the UK while you work in Italy?

@kamoe I know you have said before about using the NI even though they have been outside the UK for more than 6 months, but...

"The applicant simply needs to self-certify they’ve spent no more than six months outside the UK in any 12-month period.

This suggests a more relaxed approach to absences than the Home Office adopts in other types of settlement. That said, the Home Office will have a record of travel where eGates have been used at airports and where travel has been stamped in a passport, meaning that honesty is always the best policy."
https://www.freemovement.org.uk/lengthy ... s-at-risk/

Oh good point. I was going to argue that the Home Office does not really check physical absences and that this seems to be intentionally relaxed. Rationale being, a non-resident tax payer immigrant is the best kind of immigrant (since they pay but don't consume public services), and so seems to be intentionally allowed by the Home Office.

However, if the applicant needs to tick a box where they declare not having been absent for more than 6 months, that's a different story, since ticking that box will be akin to lying, so nothing I would recommend doing.

PeatD wrote: ↑

Sun May 09, 2021 6:05 pm

kamoe wrote: ↑

Sun May 09, 2021 5:39 pm

Has your employer continued to contribute to your UK National Insurance, and have you continued to pay UK tax and National Insurance in the UK while you work in Italy?

So I've been continuing to pay UK tax and NI since i left last year. But I've now been deemed a non-UK tax resident, for this tax year and going forward so have been issued an NT tax code as of last month. But UK National Insurance continues to be paid by my employer at the moment. I'm still working through the Italian side of things, so I'm unsure if UK NI will continue or not once the italian obligations are in place..

OK, seems relying on NI to argue continued residence won't help you here, because of this and because of JB007's point above, sorry.

JB007 wrote: ↑

Sun May 09, 2021 5:59 pm

@kamoe I know you have said before about using the NI even though they have been outside the UK for more than 6 months, but...

"The applicant simply needs to self-certify they’ve spent no more than six months outside the UK in any 12-month period.

This suggests a more relaxed approach to absences than the Home Office adopts in other types of settlement. That said, the Home Office will have a record of travel where eGates have been used at airports and where travel has been stamped in a passport, meaning that honesty is always the best policy."
https://www.freemovement.org.uk/lengthy ... s-at-risk/

Thank you for sharing this link. This seems promising...

"People with pre-settled status, in particular, need to be aware of the absence rules. If they have been outside the UK for more than six months in any 12-month period, they will now only be able to upgrade to settled status if they returned to the UK before 31 December 2020."

...should still mean i can come back to the UK, just means i can't apply for settled status. But then it also says this...

"If someone with pre-settled status exceeds the permitted absences and returns to the UK after 31 December 2020, they will be unable to restart the settled status clock at all. Their permission to be in the UK will end on the date their pre-settled status expires. They will need to get permission to remain under the normal UK visa system, or leave the country."

Therefore it sounds like I'm technically OK to return to the UK (whether for work, or for living) until 2025... I think?

I'm still not clear if there is any impact to my job, if i'm only required to be back in the UK every now and then? Does that mean I'm "good" until 2025... and after that, I would be need some sort of work visa, to travel between italy and UK for work? Or some sort of work sponsored visa to remain living in the UK (should things go badly and i need to leave Italy)?

kamoe wrote: ↑

Sun May 09, 2021 5:39 pm

OK, seems relying on NI to argue continued residence won't help you here, because of this and because of JB007's point above, sorry.

No worries, thanks anyways! Its all a bit confusing, as it seems that immigration residency and tax residency seem to be different things. Whilst HMRC have deemed me a non-UK tax resident, I am still a bit unclear what this means for my pre-settled status, which is meant to be valid til 2025.

The link shared by JB007 seemed to indicate I'd be OK to return to live and work in the UK before my pre-settled status expires, but that i wouldn't be able to apply for settled. But not sure if that still applies as i am now an Italian resident...

I have not seen a box were people are asked to confirm they have not been absent from the UK for more than 6 months.

I know they are asked to provide evidence of their residence.

Obie wrote: ↑

Sun May 09, 2021 7:06 pm

I have not seen a box were people are asked to confirm they have not been absent from the UK for more than 6 months.

Me neither, but I do not trust my own memory too much, as with all the anxiety my recollections of my own applications are fuzzy and I cannot tell with 100% certainty.

I know they are asked to provide evidence of their residence.

I understand this is the case when no NINO records can be found for the applicant. But when NINO records exist for more than 5 continuous years, they only ask proof that this time was spent as the family member of the EU sponsor and that the relationship with the EU sponsor still exists. For unmarried partners this usually means proof of recent cohabitation (hence proof of residence bundled in the package). Again, take this with a pinch of salt, as only my own recollections

PeatD wrote: ↑

Sun May 09, 2021 6:17 pm

"People with pre-settled status, in particular, need to be aware of the absence rules. If they have been outside the UK for more than six months in any 12-month period, they will now only be able to upgrade to settled status if they returned to the UK before 31 December 2020."

...should still mean i can come back to the UK, just means i can't apply for settled status. But then it also says this...

"If someone with pre-settled status exceeds the permitted absences and returns to the UK after 31 December 2020, they will be unable to restart the settled status clock at all. Their permission to be in the UK will end on the date their pre-settled status expires. They will need to get permission to remain under the normal UK visa system, or leave the country."

Therefore it sounds like I'm technically OK to return to the UK (whether for work, or for living) until 2025... I think?

Keep in mind the absence allowance applies differently to EU nationals than how it applies to their non-EU sponsored family members.

If a EU national holding Pre-Settled Status breaks their continuous residence period (absence of more than 6 months) and did not come back to the UK before December 31st 2020, it's game over for them. They can still stay until the end of their Pre-Settled status but they will not be able to extend it under the EU Settlement Scheme in their own right as EU citizens. This is not the case for non-EU family members, since a tiny but important difference applies: if the non-EU national breaks their residency period, but their EU sponsor family member does NOT, then there is a window for them to still come back to the UK as a "joining family member" within 5 years. See this post.

Since your husband has Settled Status, the six month allowance does not apply to him. So in the event you both wanted to return as a couple, you could return as "joining family member" as long as you come back within 5 years of your departure (your own clock of accrued residence to be counted towards Settled Status will be wiped clean and restart to zero, though).

Now, I am aware your question also refers to the possibility of coming back as a single person, so the above might not be particularly helpful... but long story short, as far as I understand, you should be good until your own Pre-Settled Status expires, but you will face difficulties upgrading to Settled Status if you have legally divorced by then or if your husband is not living with you in the UK at the time.

Quick question: How come you say your status expire in 2025, when you got it in 2019? That's 6 years. It's usually 5.

I'm still not clear if there is any impact to my job, if i'm only required to be back in the UK every now and then? Does that mean I'm "good" until 2025... and after that, I would be need some sort of work visa, to travel between italy and UK for work? Or some sort of work sponsored visa to remain living in the UK (should things go badly and i need to leave Italy)?

Immigration-wise, you are tapping into what I believe is still unknown territory, made apparent by the covid-19 pandemic, and the remote work effect. As far as I understand there is no such a thing as a "remote-work visa", in the same way there is no such a thing as a "student visa for online degrees". Either you are onsite, or you do not need a visa. In that sense, I am afraid this forum is not a place where you will find an answer that has been first-hand tried and tested, as there is no written legislation describing the framework of operation of such a case.

Technically speaking, if you are based in Italy and only come to the UK for less than 30 days a year you do not need a visa; you can always enter the UK on the strength of your Australian passport, on a business trip. But it looks like your company has found an arrangement that works for them tax-wise, so I would address that question to them. What are you to them? An employee? An external supplier (a freelancer)? A business partner? Something else?

kamoe wrote: ↑

Sun May 09, 2021 8:57 pm

This is not the case for non-EU family members, since a tiny but important difference applies: if the non-EU national breaks their residency period, but their EU sponsor family member does NOT, then there is a window for them to still come back to the UK as a "joining family member" within 5 years. See this post.

Since your husband has Settled Status, the six month allowance does not apply to him. So in the event you both wanted to return as a couple, you could return as "joining family member" as long as you come back within 5 years of your departure (your own clock of accrued residence to be counted towards Settled Status will be wiped clean and restart to zero, though).

Now, I am aware your question also refers to the possibility of coming back as a single person, so the above might not be particularly helpful... but long story short, as far as I understand, you should be good until your own Pre-Settled Status expires, but you will face difficulties upgrading to Settled Status if you have legally divorced by then or if your husband is not living with you in the UK at the time.

That's really helpful to understand both scenarios. The link in that post you shared makes things a little clearer too. Thank you!

Quick question: How come you say your status expire in 2025, when you got it in 2019? That's 6 years. It's usually 5.

Sorry I got mixed up, i applied in 2019 and it only came through as granted in Jan 2020. I actually got a call from them at the very end of 2019 to say i would be granted pre-settled status and not settled, as they would only count my time in the UK from when my residence permit was granted in 2016. Not sure if it matters for this thread but i came into the UK on the tier 5 Youth mobility visa in 2014, so those first two years don't count apparently.

Immigration-wise, you are tapping into what I believe is still unknown territory, made apparent by the covid-19 pandemic, and the remote work effect. As far as I understand there is no such a thing as a "remote-work visa", in the same way there is no such a thing as a "student visa for online degrees". Either you are onsite, or you do not need a visa. In that sense, I am afraid this forum is not a place where you will find an answer that has been first-hand tried and tested, as there is no written legislation describing the framework of operation of such a case.

Technically speaking, if you are based in Italy and only come to the UK for less than 30 days a year you do not need a visa; you can always enter the UK on the strength of your Australian passport, on a business trip. But it looks like your company has found an arrangement that works for them tax-wise, so I would address that question to them. What are you to them? An employee? An external supplier (a freelancer)? A business partner? Something else?

This is reassuring to hear thank you. I've been very fortunate that my employers have found a way to allow me to keep working (as an employee/non-exec/non-revenue generating role), and am just awaiting a concrete agreement post June, when staff are supposed to be heading back to the office. So I will definitely raise these questions with them to be sure we can stick to the less than 30 days a year rule.

In terms of entering the UK with my Australian passport, will border control have any issues with me entering, when i have lived and had ties in the UK previously? I just remember border control officers always being a bit intimidating when i had to fill in the landing cards my first two years, asking questions like "why are you living here", "when are you planning to go back to Aus" "why aren't you going back?" or is that just the normal line of questioning for border control? Wasn't like that once i had my residence permit though..

All in all, this is all very encouraging, thank you. Obviously hoping I won't need to return as a single, but its some relief to know that I should have a bit of a window to return to the UK if it comes to that.

Obie wrote: ↑

Sun May 09, 2021 7:06 pm

I have not seen a box were people are asked to confirm they have not been absent from the UK for more than 6 months.

Is this on the landing card, thats presented to border control?

I know they are asked to provide evidence of their residence.

Would it be possible to use the share code, from the prove your status service - https://www.gov.uk/view-prove-immigration-status, as the evidence to provide my pre-settled status?

PeatD wrote: ↑

Sun May 09, 2021 9:47 pm

Obie wrote: ↑

Sun May 09, 2021 7:06 pm

I have not seen a box were people are asked to confirm they have not been absent from the UK for more than 6 months.

Is this on the landing card, thats presented to border control?

I know they are asked to provide evidence of their residence.

Would it be possible to use the share code, from the prove your status service - https://www.gov.uk/view-prove-immigration-status, as the evidence to provide my pre-settled status?

Landing cards were abolished a while ago. When was the last time you flew into the UK from abroad?

No, Obie is talking about the online application process for the Settlement Scheme. The system already knows you have Pre-Settled status, that's not the issue. This is we scrutinizing the argument of whether or not you will be required to prove your physical presence in the UK when applying for Settled Status (wether they want to notice the six months absence or not), which seems to be a bit of a grey area to be honest.

It is not the proving bit that i have issue with, as every applicant has to prove their claim or case.

It is the suggestion that applicant will need to fill a declaration confirming they have not left the UK for more than 6 months, or more than 12 months for very important reasons.

That part is news, as I have made many settlement scheme applications and I have never actually seen it on the online or paper applications. I have filled Zambrano, Chen, Surinder Singh, and I never saw it.

Yes, correct. Sorry, Obie, I got the two mixed up. My main point is that you are not referring to landing cards but to the EUSS online application.

Perhaps the solicitors in that link were talking about the requirement to have Settled Status?

Settled status

You’ll usually get settled status if you’ve lived in the UK for a continuous 5-year period (known as ‘continuous residence’)

Five years’ continuous residence means that for 5 years in a row you’ve been in the UK, the Channel Islands or the Isle of Man for at least 6 months in any 12 month period.[/b] The exceptions are:

one period of up to 12 months for an important reason (for example, childbirth, serious illness, study, vocational training or an overseas work posting)
compulsory military service of any length
time you spent abroad as a Crown servant, or as the family member of a Crown servant
time you spent abroad in the armed forces, or as the family member of someone in the armed forces]
https://www.gov.uk/settled-status-eu-ci ... 2774a8dfb8

https://www.gov.uk/eusettledstatus

If the applicant is trying to pretend that they meet the -
"Five years’ continuous residence means that for 5 years in a row you’ve been in the UK, the Channel Islands or the Isle of Man for at least 6 months in any 12 month period.
for Settled Stastus. when they did not, then that would appear to be deception.

JB007 wrote: ↑

Mon May 10, 2021 7:02 am

If the applicant is trying to pretend that they meet the -
"Five years’ continuous residence means that for 5 years in a row you’ve been in the UK, the Channel Islands or the Isle of Man for at least 6 months in any 12 month period.
for Settled Stastus. when they did not, then that would appear to be deception.

That is not deception, unless you are able to read a person's mind, that cannot be proven in court. It is not what was suggested in your post, which was inaccurate.

You said a declaration has to be made that a person has not been out of the country.

Deception has both objective and subjective criteria that needs to be met.

If you definition is correct, then everyone who does not qualify for something but apply for it will be guilty of acting deceptively.

The system is evidential based. If a person applies for settle status they provide 5 years evidence of being in the UK, if they cant, they will fail if they can, they will succeed, as simple as that. There is no declaration, no deception, unless the person provides fake or forged evidence to support their case.

Have those who might have tried to pretend they were not absent from the UK for more that 6 months in any rolling 12 months, even told their employer they were not in the UK?

Employees working abroad

When your employee goes abroad, give them a letter stating:

the date they went abroad to work
their gross pay from the start of the tax year to the date they went abroad
the tax deducted from the start of the tax year to the date they went abroad

https://www.gov.uk/guidance/paying-empl ... ing-abroad

Obie wrote: ↑

Mon May 10, 2021 7:11 am

JB007 wrote: ↑

Mon May 10, 2021 7:02 am

If the applicant is trying to pretend that they meet the -
"Five years’ continuous residence means that for 5 years in a row you’ve been in the UK, the Channel Islands or the Isle of Man for at least 6 months in any 12 month period.
for Settled Stastus. when they did not, then that would appear to be deception.

You said a declaration has to be made that a person has not been out of the country.

Deception has both objective and subjective criteria that needs to be met.

If you definition is correct, then everyone who does not qualify for something but apply for it will be guilty of acting deceptively.

I said nothing of the sort, please read the post carefully. I gave a link to a well known legal site on here, which is often quoted on here. They also mentioned the exit checks.

However, the government link on who can haver Settled Status and the 6 months is any 12 months, is very clear.

As an aside, for benefits and deception-
The DWP deal with all benefit fraud unless it is a coouncil (who have the powers to deal with their fraud). They appear to be getting very good at using the Exit checks to find those who go abroad and don't tell the relevant benefits agency as the UK benefits would stop. These must think they go away with it for months/years until that letter arrives.
The DWP also use the credit agencies to look for credit footprints at an addresses, to see who really is living there. We all leave a credit footprint
And if fraud is suspected, they have the power to look at bank statements and all the information they can get from there. e.g. where is money getting withdrawn.

I've even read about an Irish citizen living in the RoI who caught and they used the Commomn Travel Area!

There is no reason to think that the Home Office won't use they checks either, even if it is at a later date.

PeatD wrote: ↑

Sun May 09, 2021 9:43 pm

Sorry I got mixed up, i applied in 2019 and it only came through as granted in Jan 2020. I actually got a call from them at the very end of 2019 to say i would be granted pre-settled status and not settled, as they would only count my time in the UK from when my residence permit was granted in 2016. Not sure if it matters for this thread but i came into the UK on the tier 5 Youth mobility visa in 2014, so those first two years don't count apparently.

Yeah, that's normal. I had the exact same call. Only years spent as family member of EU national count towards either EEA Permanent Residence or EU Settled Status.

In terms of entering the UK with my Australian passport, will border control have any issues with me entering, when i have lived and had ties in the UK previously? I just remember border control officers always being a bit intimidating when i had to fill in the landing cards my first two years, asking questions like "why are you living here", "when are you planning to go back to Aus" "why aren't you going back?" or is that just the normal line of questioning for border control? Wasn't like that once i had my residence permit though..

You are over thinking this. I have never heard on an Australian having an issue entering the UK on a business trip...

Obie wrote: ↑

Mon May 10, 2021 7:11 am

The system is evidential based. If a person applies for settle status they provide 5 years evidence of being in the UK, if they cant, they will fail if they can, they will succeed, as simple as that. There is no declaration, no deception, unless the person provides fake or forged evidence to support their case.

Sorry Obie, I need to come back to what you are saying here. Does this mean that what the Home Office says here (Proof of continuous residence) is inaccurate?:

If you arrived in the UK before 31 December 2020, you can give your National Insurance number to allow an automated check of your residence based on tax and certain benefit records.

If this check is successful, you’ll not need to provide any documents as proof of residence. You’ll only need to provide documents if you have been here for 5 years in a row but there is not enough data to confirm this.

The Home Office will tell you immediately after you apply if you need to provide any documents.

If there are NINO records showing more than 5 years history, not supplied by the applicant but checked automatically, does the applicant still has to provide (more) evidence? According to the above, no. According to you, maybe yes? Or am I misinterpreting your statement?

Wow this is much broader than i realised, with NINO records and that. Sorry just catching up on all the helpful discussion, so hopefully I'm following correctly. Thanks for everyone's input!

From what I've understood from the discussion here, its my ability to qualify for settled status that is impacted due to me having left the UK now. But ultimately I can still come back to the UK, if I return within 2 years, from when i left and I can remain in the UK until my pre-settled status expires (whether i return with my husband- who has settled status- or as a single person)? But after my pre-settled expires, I will need to seek an alternate visa route to remain as I wont qualify for settled status then. Did i get that right?

If I have understood correctly, then thats a huge relief, as I understand i won't be eligible for Settled Status anymore but wasn't sure if I my pre-settled becomes void or something, if my husband and I separated and he didn't return to the UK. I think with the Residence Permit, it was an immediate void as it was linked to him (so if I didn't inform them, it would be fraudulent i guess).

I'm certain I can find an arrangement with my UK employer for sponsorship (as it's come up in conversation previously), so as I long as I am able to return to the UK I can organise things with them. Otherwise I could be stuck in Italy, whilst trying to mitigate a break-up and legal/logistical things which will be slow and painful. I'd rather GTFO if things go that way...

kamoe wrote: ↑

Mon May 10, 2021 8:50 am

You are over thinking this. I have never heard on an Australian having an issue entering the UK on a business trip...

Apologies, i do tend to massively overthink! I've have had some Aussie friends who have been denied entry to the UK after their 2 year YMS visa was over. However this was probably over 10 years ago and I guess different circumstances.

JB007 wrote: ↑

Mon May 10, 2021 7:17 am

Have those who might have tried to pretend they were not absent from the UK for more that 6 months in any rolling 12 months, even told their employer they were not in the UK?

Employees working abroad

When your employee goes abroad, give them a letter stating:

the date they went abroad to work
their gross pay from the start of the tax year to the date they went abroad
the tax deducted from the start of the tax year to the date they went abroad

https://www.gov.uk/guidance/paying-empl ... ing-abroad

Ohh i have seen this page and my employer has done exactly that. Both myself and HR didn't really understand what it was for, but I thought it was related to HMRC and something I needed to submit re: double taxation or something tax related...either for Italy or UK (its all very confusing!). Either way though, we've tried to be as by the book as possible, at least for tax things. I didn't realise this letter was also for immigration purposes. But I have it!

Sorry for putting my two words here,

I have a question regarding absence within 12 months. what does it mean?

Please, correct me if I am wrong: It means, lets say I got residence card November 2018 and I qualify for ILR in November 2023. So, when I apply in November 2023, I will roll back 12 months period and count any absence within those 12 months?From November 2023 to November 2022?

Am I correct?

Thanks!