Durable relationships under the Immigration (European Economic Area) Regulations 2006
Regulation 8 of the Immigration (European Economic Area) Regulations 2006 (the ‘2006 Regulations’) sets out circumstances in which a person will be considered the ‘extended family member’ of an EEA national. Unlike a family member who falls within Regulation 7, such a person would not have a right to reside in the UK under European law until issued a Residence Card. Unmarried relationships fall within Regulation 8(5) which states:
‘A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national’.
Neither Council Directive 2004/38/EC nor the 2006 Regulations provide a definition of ‘durable relationship’. When considering an application for a residence card on the basis of a durable relationship, the Home Office will apply the guidance set out in their European Casework Instructions which is based on the requirements for unmarried partners under the Immigration Rules. The Home Office will consider a relationship to be a durable one where:
- The couple have been living together in a relationship similar to a marriage for at least two years;
b) The couple intend to live together permanently;
c) The couple are not blood relatives (i.e. it is not a consanguineous relationship); and
d) Any previous marriage or other similar relationship by either party has permanently broken down.
Case law of the courts has confirmed that the Home Office’s European Casework Instruction in relation to durable relationships ‘should not be taken as necessarily correct in every particular’. In YB (EEA reg 17(4) – proper approach) Ivory Coast  UKAIT 00062 the Tribunal stated that ‘durable relationship’ is a Community law term and to seek to reduce it to the criteria contained within the Immigration Rules would run contrary to Community law. However, the Home Office is entitled to have some regard to similar provisions of the Immigration Rules as to whether it is appropriate to issue a residence card.
The fact that a couple have lived together for at least two years, which would provide the basis for an application as an unmarried partner under the Immigration Rules, is a relevant consideration. However, two years cohabitation is not essential and cannot be determinative of the issue and indeed the Home Office must be wrong to treat the requirement of two years cohabitation as a mandatory requirement.
Once the applicant has satisfied the Home Office as to the fact that the couple are in a durable relationship then the Home Office will consider the application by reference to the remaining requirements of the 2006 Regulations (Regulation 12 for an application made outside the UK and Regulation 17 for applications made within the UK) including an extensive examination of the application by reference to the personal circumstances of the Applicant and whether the partner is exercising Treaty rights in the UK.
When assessing whether it is appropriate to issue a residence card under Regulation 17(4) the Secretary of State will take into account a number of factors, including whether the refusal to issue a residence card will deter the EEA national from exercising his or her free movement rights, any evidence of criminality on the part of the applicant and the applicant’s immigration history.
Although having a negative immigration history is likely to weigh against issuing a residence card, an application should not be refused solely on the basis of a negative immigration history alone. Each case must be considered on its own merits, taking into account all the relevant facts.
If you are the unmarried partner of an EEA national and would like further advice regarding the possibility of making an application for a residence card, or if you have had an application for a residence card refused on the basis that you are not in a durable relationship, then please contact our immigration barristers in London on 0203 617 9173 or email firstname.lastname@example.org.