Singh (EEA; EFMs) [2021] UKUT 319 (IAC) is the latest instalment from the Upper Tribunal on EU free movement law in outstanding cases from before Brexit — specifically, retained rights of residence for “durable partners”.

Mr Singh had a residence card on the basis of a durable relationship with his EU citizen partner. The relationship broke down due to domestic abuse and he sought to re-establish a right of residence as a person who had retained rights under regulation 10(5) of the EEA Regulations 2016.  The Home Office refused to issue such a residence card as the couple had not been married, and regulation 10(5) only explicitly applies to spouses and civil partners. Mr Singh appealed.

Reliance on EU law in appeal lodged before Brexit

He relied on EU Directive 2004/38/EC, arguing that a proper construction of articles 3(2) and 13 permitted victims of domestic abuse to retain their right of residence even if unmarried. In the alternative, he argued that any differential treatment on the basis of his marital status was discriminatory and thus unlawful as it breached the principle of equal treatment.

As has become usual in such appeals, the judgment includes a useful summary of the extent to which EU law continues to apply despite Brexit (see paragraphs 5-17). In a nutshell and for the purposes of this case, since Mr Singh’s residence rights were established pre-Brexit, the Treaty on the Functioning of the European Union and the legislation enacted under it, which includes Directive 2004/38, are preserved by the Withdrawal Agreement and apply in an appeal lodged before Brexit.

No retained rights of residence for former durable partners

The Home Office argued that the directive could not be construed in the way contended by the appellant: “the duty to facilitate residence under article 3(2) had ceased well before the date of decision as that duty exists only so long as the durable relationship exists”. In support of that proposition, counsel for the Home Office relied upon an unreported decision, Tarikul Islam [2020] UKAITUR EA043902019. The tribunal gave permission to do so, as the case addressed a point not covered in any reported decisions of the Upper Tribunal – see Practice Statement 11.

The tribunal went on to agree with the Home Office that the article 3(2) duty to facilitate entry arises when the partner “has a durable relationship” with their EU citizen sponsor. “That is a continuing requirement; in order for someone to be a beneficiary there has to be an extant nexus with the EEA national”. It added that this is consistent with Chowdhury [2021] EWCA Civ 1220, which Alex Schymyck covered here.

Nor could article 13, on retained rights of residence for divorced victims of domestic abuse, be interpreted so as to cover former durable partners. The legislation draws a distinction between direct family members (including spouses/civil partners) and extended family members (including durable partners) that dates back as far as Regulation 15/1961, the first European legislation on the issue. It cannot

be read as though there was no distinction to be made in Article 13 between those who are married and those who are not. That would do violence to the structure of the Directive which clearly maintains the distinction between people who are married and those who are not…

The European Union has clearly decided that certain family relationships will be protected, and others will not.

The discrimination grounds also failed; you can delve into these at paragraphs 40-47.

Applying under the EU Settlement Scheme instead

My chambers colleague, Guy Davison, represented Mr Singh in this appeal. He points out that:

All hope may not be lost for the few applicants who this may still be relevant to. The gov.uk overview of the EU Settlement Scheme says:

“If you are a victim of domestic violence or abuse

You can apply if your family relationship to someone from the EU, Switzerland, Norway, Iceland or Liechtenstein who was living in the UK by 31 December 2020 has broken down permanently because of domestic violence or abuse.

You can apply if you are or were their:

• spouse or civil partner
• unmarried partner
• child, grandchild or great-grandchild under 21 years old
• dependent child, grandchild or great-grandchild over the age of 21
• dependent parent, grandparent or great-grandparent
• other dependent relative”

This reflects changes to the Settlement Scheme rules that took effect in June 2020. Nath noted at the time that, unlike under the EEA Regulations, the effect is that “any family member who falls within the scope of the Scheme (including durable partners, children, dependent parents and dependent relatives), and whose family relationship with a relevant EEA citizen broke down as a result of domestic abuse against them or another family member, will be able to retain rights of residence”.

This article was amended on 11 January 2021 to add more information about the position under the EU Settlement Scheme.