As an EU/US citizen can I apply for pre-settled status while living in the US?

Question

I lived in the UK 1994-2006 as a US citizen and had Indefinite Leave to Remain status. Living in the US again since 2006, I have lost that status. I am now a dual EU/US citizen, having become an Italian citizen 5 years ago, I also have a son who lives in England and has Indefinite Leave to Remain status, and a granddaughter also living in the UK who is a British Citizen. Can I get Pre-settled status in the UK while still living in the US? Does my years of living in the UK count in any way, or having relatives there? I would like to move back to the UK before December 31, 2020.

Answer 1

You MUST be living in the UK on December 31st, 11pm (which is 12pm in the rest of the EU). I would strongly recommend being there a week earlier or better two, in case some jobsworth tries to find a reason to claim you were not actually living there. I wouldn't trust them not to try that.

Rent a room from your son for that time and pay him rent (or rent from a real landlord), open a bank account, apply for a National Insurance number, get a phone contract, visit the job centre. May be a good idea to be there two weeks early and not having to organise things between Christmas and New Year.

Then you have about six months time to apply for settled status. You won't get it obviously, you will get pre-settled status, and five years after you entered the UK, you apply again and then you should get settled status, unless you left the UK for too long a time in those five years.

Here's a list of evidence that should get accepted: [1]: https://www.gov.uk/guidance/eu-settlement-scheme-evidence-of-uk-residence#evidence-that-covers-shorter-periods-of-time

Answer 2

Can I get Pre-settled status in the UK while still living in the US?

No. Settled status is essentially a "grandfathering" system to enable EU citizens to retain rights of free movement after the UK leaves the free movement system. As such, it is only available to EU citizens who reside in the UK.

I would like to move back to the UK before December 31, 2020.

In that case, you can apply, but you should only do so after you move to the UK. While the deadline for moving to the UK is December 31st, you have an extra six months to submit the application, for which the deadline is June 30, 2021.

It must be said that these deadlines are not particularly important if your EU country is Ireland, since Irish citizens will continue to have similar rights in the UK, unless you intend to bring a non-EU family member with you.

This isn't particularly explicit on the UK's pages explaining the program, but it is implied, for example in saying that you "can apply to the EU Settlement Scheme to continue living in the UK after 30 June 2021." If you want to wade through the relevant portion of the immigration rules, you'll find the following:

1. To be eligible for pre-settled status, you must have a "continuous qualifying period" of less than five years (see section EU14)
2. You do not have a continuous qualifying period because you have not resided in the UK as an Italian citizen (see section EU11, condition 3).

By definition, the continuous qualifying period must begin before the end of the transition period (that is, before 23:00 GMT on December 31, 2020). The definition is found in Annex 1:

continuous qualifying period:
a period of residence in the UK ...:
(a) which began before the specified date; and
...

The definition of "specified date" is currently (omitting subparagraph (b) because it does not apply:

specified date:
(a) (where sub-paragraph (b) below does not apply) 2300 GMT on 31 December 2020; or
(b) ...