In this article, we focus on who can qualify (meets the criteria) as an unmarried ‘durable’ partner under the EU Settlement Scheme (EUSS).
Applicants submitting their EU Settlement Scheme or EU Settlement Scheme Family Permit applications on their own without professional legal support, who rely on the durable partner category, are increasingly getting unsuccessful results. There are many different reasons for the high number of refusals. However, one main cause is that the applicants’ misinterpret the current immigration laws applicable in their circumstances. For example, by applying without suitable documentary evidence of their ‘durable’ relationship before end of December 2020 or by applying when clearly not meeting the requirements under the EU Settlement Scheme.
Many applicants are in our view simply trying their luck, as the EU Settlement Scheme is free of charge. Compared to the standard spouse/unmarried partner visa application fees, it makes huge financial advantage. Spouse visa/unmarried partner application fees are high (£1,538 for out of country applications) and, in addition, there is also the mandatory NHS Surcharge (£1,872 for out of country application) to pay before the spouse visa application can be submitted online. In addition, there are similar fees for extension of the visa and even higher fees for the Indefinite leave to Remain (ILR) as a Spouse/Unmarried Partner.
Unmarried partners frequently apply under the EU Settlement Scheme relying on the durable partner category, BUT there was no durable relationship established before December 2020 OR the applicants failed to provide sufficient documentary evidence to prove that the durable relationship did exist by the end of December 2020 cut off date.
In this article, we focus on the meaning of durable partnership under the EU Settlement Scheme immigration rules and the Home Office guidance.
Who can apply as durable partner under EU Settlement Scheme
UK is no longer part of the EU, following Brexit, however, ‘durable’ partners can still apply to join their EU sponsors in the UK under the EU Settlement Scheme, providing they were ‘durable’ partners by the end of December 2020 and are still ‘durable’ partners at the date of application. Applications under the EU Settlement Scheme by family members who did not reside in the UK before the end of December 2020, and who wish to apply as durable partners, are submitted as ‘joining family members’.
Applicants should carefully read the Appendix EU and Home Office guidance, to understand the definition of ‘durable’ partner to see if they can meet it. The matter can be complex.
The term ‘durable’ partner originates from the EU Directive 2004/38/EC — Article 3(2)(b) . The term is used in the Directive but the law does not provide the definition of what ‘durable’ means. When there is no legal definition of a term used in law, lawyers take the approach to put an ordinary meaning to the word. When we check the meaning of ‘durable’ in dictionaries, we can see associated terms such as ‘able to last’, ‘long-lasting’, ‘staying strong and in good condition over a long period of time’, or ‘likely to last for a long time without breaking or getting weaker’.
There is caselaw to pay attention to when considering the EUSS applications. For example, the Upper Immigration Tribunal case of Celik [2022] UKUT 00220 https://tribunalsdecisions.service.gov.uk/utiac/2022-ukut-00220 In this case the following were the significant conclusions:
- ‘(1) A person (P) in a durable relationship in the United Kingdom with an EU citizen has as such no substantive rights under the EU Withdrawal Agreement, unless P’s entry and residence were being facilitated before 11pm GMT on 31 December 2020 or P had applied for such facilitation before that time.’
- ‘(2) Where P has no such substantive right, P cannot invoke the concept of proportionality in Article 18.1(r) of the Withdrawal Agreement or the principle of fairness, in order to succeed in an appeal under the Immigration (Citizens’ Rights) (EU Exit) Regulations 2020 (“the 2020 Regulations”). That includes the situation where it is likely that P would have been able to secure a date to marry the EU citizen before the time mentioned in paragraph (1) above, but for the Covid-19 pandemic.
- ‘(3) Regulation 9(4) of the 2020 Regulations confers a power on the First-tier Tribunal to consider a human rights ground of appeal, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the Secretary of State.’
Religious marriages
This gives some clues what durable may also mean in law when considering whether there is a durable relationship in a particular case. Another thing that lawyers do, is to look at the case law in the Courts and Tribunals to see how judicial bodies interpret the meaning of ‘durable’ relationship. Furthermore, applicants need to bear in mind that only certain religious marriages are recognised in the UK under the Marriage Act 1949, and these are Church of England, Jewish and Quaker marriages.
Other religious marriages (e.g. Muslim, Hindu, Sikh marriages etc.) are not recognised under the UK law if the religious marriage took place in the UK. However, religious marriages conducted abroad are recognised under laws in the UK provided that that they were registered in accordance with the laws of that country with the appropriate authority. Those who had an unrecognised religious marriage in the UK, will need to apply as unmarried partners and prove ‘durable’ relationship. Some further useful information on understanding Muslim marriage in the UK can be found here. There is also caselaw relating to Muslim marriage and its relevance to prove ‘durable’ relationship.
The same Article 3(2)(b) of the Directive 2004/38/EC further states that ‘The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’
Under the Directive 2004/38/EC there is an obligation to facilitate, in accordance with national legislation, entry and residence for the partner with whom the Union citizen has a durable relationship. Member State is obliged to undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people’. This requirement of extensive examination of the personal circumstances in each case is certainly something to point out to the Home Office when submitting your application. Unfortunately Home Office caseworkers often tend to take a quick view that there is no durable relationship if an application lacks proper documentary evidence of 2 years cohabitation.
Further below, we look more in detail into the definition of the ‘durable’ partnership under the UK law in the Appendix EU, which provides the legal basis for applications as durable partners under the EU Settlement Scheme.
What the current UK immigration law say on ‘Durable’ relationship
It is important to first read the current law on the ‘Durable’ partnership, including the caselaw. The primary law is in the Appendix EU rules and it is further explained in the Home Office EU Settlement Scheme Guidance.
Appendix EU: ‘The applicant is (or for the relevant period was) in a durable relationship with the relevant EEA citizen (or qualifying British citizen or relevant sponsor), with the couple having lived together in a relationship akin to a marriage or civil partnership for 2 years or more, unless there is other significant evidence of the durable relationship, for example, evidence of joint responsibility for a child (a birth certificate or a custody agreement showing they are cohabiting and sharing parental responsibility). ‘
It is useful to note that the Appendix EU further states that the reference to the couple having lived together in a relationship akin to a marriage or civil partnership for at least 2 years is a rule of thumb, not a requirement and the Home Office must consider in each case whether there is significant evidence of a durable relationship, based on all the information and evidence provided by the applicant.
This is incredibly important statement from the Home Office, as it means that those couples who do not have the 2 or more years’ evidence of cohabitation, may still qualify as ‘Durable’ partners. Applicants could for example enter into a religious marriage that although is not recognized legally in the UK but nevertheless it may show the durability of the relationship.
The Home Office EU Settlement Scheme guidance repeats the Appendix EU, stating that durable partner is either of the following:
- Someone who holds a ‘Relevant Document’. Relevant Document is one of the below:
- a family permit issued under the EEA Regulations
- an EU Settlement Scheme family permit
- a residence card issued under the EEA Regulations or the EU Settlement Scheme
- a letter from the Secretary of State confirming your qualification for a family permit or residence card under the EEA Regulations, had the route not closed after 30 June 2021. OR
- Someone who lived together in a relationship akin to a marriage or civil partnership for 2 years or more, unless there is other significant evidence of the durable relationship, for example, evidence of joint responsibility for a child (a birth certificate or a custody agreement showing they are cohabiting and sharing parental responsibility).
The Home Office guidance confirms that the reference to the couple having lived together in a relationship akin to a marriage or civil partnership for at least 2 years is a rule of thumb, not a requirement and Home Office must consider in each case whether there is significant evidence of a durable relationship, based on all the information and evidence provided by the applicant.
Practical importance of the definition
The difficulty with application involving ‘durable’ partners is that Home Office caseworkers tend to focus on the 2 years cohabitation and the documentary evidence of the residence together, rather than analysing all the evidence provided by applicants to assess whether the durable relationship existed by end of December 2020. Therefore, applicants who do not provide evidence of 2 years cohabitation completed by end of December 2020, may face a refusal and have to challenge the Home Office decision by appealing the case to Immigration Tribunals.
From applicant’s perspective, it is important to analyse your circumstances and provide all the relevant documentary evidence that you possibly can gather, to prove the durability of your relationship that are not only limited to evidence of cohabitation. There may be events in your relationship that can evidence such durability even if there is no 2 years’ cohabitation. The most obvious evidence is having a child together and living together as a family with your partner and the child.
How we can help
We are diligent and experienced in EU Settlement Scheme applications for durable partners and we can assist you with the entire process, or we can review your application as an application checking service for a smaller professional fees. Professional assistance from an immigration lawyer can save money and time, and its benefits will surpass the cost of the legal advice.
It is important to get it right and get a successful outcome of an application under the EU Settlement Scheme in order to avoid issues when crossing UK border. There is a useful Home Office guidance on this topic EU Nationals at the Border post Grace Period. The conclusion from this Home Office guidance is that in some circumstances it is better to remain in the UK until the application is approved.
