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Durable Partners under the EU Settlement Scheme

As discussed in my previous blog post, in order to make an application as a family member of an EEA national under the EU Settlement Scheme, the family relationship is required to have existed before 31 December 2020. One category of family relationship covered by the Rules is that of ‘durable partners’. The provisions contained in Appendix EU in relation to durable partners are convoluted, and relate not only to the existence of a relationship prior to 31 December 2020, but also to the applicant’s previous immigration status in the UK. This blog post will summarise the main provisions contained in Appendix EU, and Appendix EU (Family Permit) which relate to durable partners of EEA citizens. 

When is a relationship with an EEA national ‘durable’?

In order to demonstrate that a couple are in a durable relationship, the Home Office will ordinarily expect evidence that they have lived together in a relationship akin to a marriage or civil partnership for at least two years. The Rules do also allow for the provision of ‘other significant evidence of a durable relationship’. The Home Office’s guidance refers to evidence of joint responsibility for a child as ‘other significant evidence’ of a relationship, though this is only one example. This provision could apply in a number of circumstances, and its scope has not been precisely defined. 

The Home Office can accept that a relationship is durable if an applicant can demonstrate that they previously held a ‘relevant document’ as the durable partner of a relevant EEA citizen and there is evidence that the relationship remains durable at the date of application. In this context, a ‘relevant document’ includes a residence card or permanent residence card issued by the UK under the EEA Regulations on the basis of an application made under the Regulations before 31 December 2020, or in the case of an EEA Family Permit, before 01 July 2021. A relevant document can also include a Family Permit issued under Appendix EU (Family Permit).

As outlined above, the Immigration Rules require a relationship to have been durable before the specified date (31 December 2020 for family members of EEA nationals).  This means that the expected evidence would be of two years’ cohabitation completed prior to 31 December 2020 (or other significant evidence of a durable relationship prior to that date). It is also necessary to demonstrate that a relationship remains durable at the date of application. 

A question arises as to what extent evidence of a relationship after the specified date could be taken into account in the assessment of whether a relationship was in fact ‘durable’ prior to the specified date. For example, Appendix EU requires that an applicant who has married an EEA national after the specified date to demonstrate that their relationship was durable prior to the specified date. It could be argued that a marriage (or indeed another significant event such as the birth of a child) that took place after 31 December 2020 could constitute significant evidence that a relationship was durable prior to 31 December 2020. However, the Home Office’s guidance does not shed light on such circumstances, and the approach to such arguments remains to be seen. 

Previous residence in the UK and the EU Settlement Scheme

As outlined above, an applicant who has previously been resident in the UK, and held a residence card as a durable partner during that time, will be able to make an application under Appendix EU as a family member. However, the alternative provisions, for those who have been resident in the UK, but who did not previously hold a relevant document, are more complex and contained within a particularly convoluted section of the Appendix. 

The relevant section of the definition of ‘durable partner’ contained in Appendix EU states that a person needs to meet one of the following requirements, if they did not hold a relevant document:

(bb) the person:

(aaa) was not resident in the UK and Islands as the durable partner of a relevant EEA citizen (where that relevant EEA citizen is their relevant sponsor) on a basis which met the definition of ‘family member of a relevant EEA citizen’ in this table, or, as the case may be, as the durable partner of the qualifying British citizen, at (in either case) any time before the specified date, unless the reason why, in the former case, they were not so resident is that they did not hold a relevant document as the durable partner of a relevant EEA citizen for that period (where their relevant sponsor is that relevant EEA citizen) and they did not otherwise have a lawful basis of stay in the UK and Islands for that period; or

(bbb) was resident in the UK and Islands before the specified date, and one of the events referred to in sub-paragraph (b)(i) or (b)(ii) in the definition of ‘continuous qualifying period’ in this table has occurred and after that event occurred they were not resident in the UK and Islands again before the specified date; or

(ccc) was resident in the UK and Islands before the specified date, and the event referred to in sub-paragraph (a) in the definition of ‘supervening event’ in this table has occurred and after that event occurred they were not resident in the UK and Islands again before the specified date,

As can be seen, this section of the definition is not clearly drafted, and would benefit from clarification. However, in summary it provides that the following individuals will be eligible to make an application as the durable partner of a relevant EEA national. Firstly, a person who was in a durable relationship with a relevant EEA national, but who did not live in the UK at any time before the specified date could rely on section (aaa) of this provision. Secondly, a person who is a durable partner of a relevant EEA citizen and was previously resident in the UK without a relevant document can make an application, also in reliance on section (aaa), so long as they had another lawful basis for their stay in the UK. Finally, a person who is a durable partner of a relevant EEA citizen who was resident in the UK without a relevant document, and with no other lawful basis of stay, can make an application only if their continuous qualifying period of residence has subsequently broken, for example through an absence from the UK of more than 6 months, or if a ‘supervening event’ has occurred (relying on section (bbb) or (ccc)). 

This understanding is supported by the Home Office’s guidance, which states that : “The effect of the above provisions is that, where, at the specified date, a person was continuously resident in the UK and Islands as the durable partner of a relevant EEA citizen (where that relevant EEA citizen is their relevant sponsor) and did not hold a relevant document as that durable partner, they must (unless they otherwise had a lawful basis of stay in the UK and Islands for that period, for example as a student) break their continuity of residence in the UK and Islands before they can apply as a joining family member and the durable partner of the relevant sponsor. They can then rely on the evidence referred to in the previous paragraph.”

In most circumstances (though not all – please see below), if a person is making their application from outside the UK, they will be relying on the provisions contained in Appendix EU (Family Permit). The definition of a durable partner contained in this Appendix is framed differently from that in Appendix EU, but the substance is similar. It requires an applicant to have previously held a relevant document as a durable partner of the relevant EEA citizen, to otherwise have been lawfully resident in the UK, or to be a ‘joining family member’, which means that either they were not resident in the UK prior to 31 December 2020, or that their continuous residence has been broken, ordinarily by an absence of more than 6 months.

Appendix EU finally requires that it is the relationship is not, and for the relevant was not, a durable partnership of convenience and that neither person has, or for the relevant period had, another durable partner, a spouse or a civil partner with immigration status in the UK or the Islands based on that person’s relationship with them.

Should the EU Settlement Scheme application be made from inside or outside the UK?

An applicant who is lawfully resident in the UK, otherwise than as a visitor, can apply from within the UK for Pre-Settled Status. An applicant who has been resident in the UK unlawfully would need to depart from the UK to make an application, and to remain outside the UK until their continuity of residence had been broken, as outlined above. A visitor would also need to depart from the UK to make an application as a joining family member, but would face no requirement to break their continuity of residence, given that they were previously in the UK lawfully.

Generally, if an application is being made outside of the UK it should be an application for a EUSS Family Permit, followed by an application for Pre-Settled Status upon arrival in the UK. However, an EEA citizen with a valid passport or national identity card, or a non-EEA citizen with a relevant document (as defined above) can apply for Pre-Settled Status from outside the UK without the need to apply for a Family Permit.

Contact our Immigration Barristers

For expert advice and assistance in relation to an application under the EU Settlement Scheme, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.

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