Gaps with pre-settled status

Hi All.

We have a client whose best right to reside is as the main carer of a dependent child. She was working consistently before going abroad for approx 8 weeks. She has now returned and work has dried up a lot so her work history post-holiday is very minimal.

Are gaps fatal, or can we just argue it was an extended holiday (which it was) and she continues to have a valid right to reside on the previous history?

Thank you

Do you mean that she should have a derivative right to reside as the primary carer of the child of an EEA worker?

All that is needed is that she was a worker while the child was in the UK, and that the child is now in education. She doesn’t have to continue to be a worker

It’s more whether the 8 weeks of gap will cause problems, or she can just continue to be the primary carer of the child of an EEA worker?

The EU right that is being exercised when someone has a derivative right to reside is for the child to continue in education in the UK. I can’t see that this right is affected by the 8 week gap, even if the child left the UK for 8 weeks as well. It was a temporary absence and I assume the child would just resume the same studies as before

I think there would be a doubt if your client was still trying to rely on her worker status for a right to reside

There’s lots of case law on gaps in work, and I don’t think 8 weeks would be fatal, especially if she could prove she was looking for work.  So it sounds as if there are at least two of the old right to reside that apply to her.  In the past derivative rights would never have helped to building up a permanent right to reside, so in this sense the post-Brexit rules are more generous in that just carrying on for 5 years should give her settled status.

Has she worked since returning after the eight weeks?

Jim

Or demonstrably looked for work?