Relationships with EEA Nationals after 31-12-2020
As outlined in our previous blog post, the Statement of Changes to the Immigration Rules HC 813, published on 22 October 2020, set out the new provisions for family members of EEA nationals in cases where the family members have not been resident in the UK prior to 31 December 2020. In order to meet the definition in Appendix EU of a ‘joining family member’, a family member of an EEA national who was not resident in the UK prior to 31 December 2020 will be required to demonstrate that their relationship with the EEA national existed prior to 31 December 2020, and that it continues to exist at the date of application. This blog post will address what will happen to those whose relationship with an EEA national is deemed to begin to exist after 31 December 2020.
Spouses and Civil Partners
In a year during which the COVID-19 pandemic has led to the postponement of many marriage ceremonies, the requirement for a marriage to have existed prior to 31 December 2020, or for a couple to have met the definition of a ‘durable partnership’ prior to this date, may preclude many couples who marry in 2021 or beyond from relying on Appendix EU to the Immigration Rules. The circumstances in which a couple may be viewed as having been in a durable partnership prior to the end of the transition period under the new Rules will be addressed in a future blog post.
If a couple is unable to show that they married, or met the definition of ‘durable partner’ prior to 31 December 2020, but the EEA national holds limited leave to remain (‘pre-settled status’) under Appendix EU, their partner will be able to make an application under Appendix FM. In its current form, Appendix FM only provides a route for the partners of British citizens, those who are present and settled in the UK, or those who are in the UK with refugee leave or with humanitarian protection. However, the Statement of Changes sets out that, from 11pm on 31 December 2020, a person will be able to make an application under Appendix FM if they are the partner of an EEA national who holds valid limited leave to enter or remain granted under Appendix EU of the Immigration Rules. Once an EEA national has been granted Settled Status (indefinite leave to remain) under Appendix EU, a new spouse or civil partner would also need to make an application under Appendix FM, and the EEA national would fall into the bracket of being ‘present and settled’ in the UK.
The definition of ‘partner’ in Appendix FM includes unmarried partners, spouses or civil partners and fiancé(e)s or proposed civil partners who can demonstrate that their relationship is genuine and subsisting. They will also need to demonstrate that they will be adequately maintained and accommodated in the UK, including by meeting the minimum income requirement of at least £18,600 from a specified source of income. The evidential requirements are stringent and therefore such applications require careful preparation.
If an application under Appendix FM is successful, an applicant will ordinarily be granted leave to remain for a period of 2.5 years, on a 5 year route to settlement (although a 10 year route to settlement will be applicable in some cases).
Unmarried partners of those who have been granted limited leave under Appendix EU will be able to make an application under Appendix FM if they can demonstrate that they have been cohabiting for a period of at least two years in a relationship akin to marriage, or there are exceptional circumstances. They will need to make an application under Appendix FM if this period of cohabitation was completed after 31 December 2020 – if they cohabited for 2 years prior to this date, or there was other significant evidence of a durable partnership prior to this date, then they may be eligible to make an application as a ‘joining family member’ under Appendix EU.
It is of note that partners of EEA nationals with limited leave to remain under Appendix EU will fall within the remit of Appendix FM, which was previously reserved only for partners of those with indefinite leave to remain, British citizenship, or leave to remain as a refugee or with humanitarian protection. However, this route will remain limited in its availability, only being open to partners of those EEA nationals who have been granted limited leave to remain under Appendix EU, and who continue to hold valid limited leave to enter or remain. In practice, this means that it will only be open to those whose EEA national partner has resided in the UK prior to 31 December 2020. Different provisions will be relevant for EEA nationals who have status in the UK other than under Appendix EU. For example, the partner of an EEA national granted leave under the Skilled Worker Route will need to make an application as their dependent under Appendix Skilled Worker.
However, the privilege of being included within the scope of Appendix FM for those family members of EEA nationals with limited leave to remain under Appendix EU comes at a cost. As well as meeting the financial requirements mentioned above, an application under Appendix FM requires the payment of significant application fees, in contrast to an application under Appendix EU which is free. The requirement for partners of even those EEA nationals who have been resident in the UK prior to 31 December 2020 to make an application under Appendix FM if the relationship did not exist beforehand is therefore representative of the fundamental changes which are being made to the landscape faced by EEA nationals and their family members in the UK following the end of the transition period on 31 December 2020.
Contact our Immigration Barristers
For expert advice and assistance in relation to an application under the EU Settlement Scheme or Appendix FM, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.