The Upper Tribunal has held that the non-EU partner of an EU citizen cannot start accruing time towards permanent residence status until they have a residence card, pointing out the well established distinction between family members and extended family members in EU free movement law. In short: a person married to an EEA citizen has much stronger rights than an unmarried partner of an EEA citizen.

The case, dated December 2018 but published last week, is Kunwar (EFM – calculating periods of residence) [2019] UKUT 63 (IAC). Mr Kunwar, a Pakistani national, argued that he was entitled to a permanent residence card because he had lived in the UK for five years as the “durable partner” of a Polish national. “Durable partner” is the phrase used in EU free movement law for someone who is in a serious long term relationship with an EEA national, but who is not married to them.

Permanent residence clock starts only when residence card issued

Mr Kunwar and his Polish partner lived together between January 2007 and March 2014, when the relationship broke down. In September 2009 Mr Kunwar was issued with a residence card as an extended family member of an EEA citizen. In September 2015 he submitted an application for a permanent residence card.

Where were the five qualifying years? Mr Kunwar wanted to rely on the five year period from March 2009 to March 2014. This included six months without a residence card (March 2009 to September 2009) and 4.5 years with one (September 2009 to March 2014). He argued that, because the durable partnership had lasted for five years and had been recognised by the Home Office through issuance of a residence card, he had acquired permanent residence — even though he had not actually held the residence card for five years. This argument succeeded at the First-tier Tribunal.

The Upper Tribunal allowed the Home Office’s appeal, emphasising the distinction between family members and extended family members. A family member, such as a spouse, has an automatic right of residence and can rely on the length of their relationship with their EEA sponsor and residence in the UK, regardless of if and when the Home Office issue a document to recognise their right of residence. On the other hand an extended family member, such as a durable partner, has no automatic right of residence. They only acquire such a right if and when the Home Office issues a residence card. After the card is issued, they are entitled to be treated as a family member. The Upper Tribunal rejected the notion that the issuance of a residence card has retrospective effect. Judge Grubb held that as Mr Kunwar was not resident in accordance with the EEA Regulations prior to September 2009 and had only lived in the UK as the family member of his Polish partner for 4.5 years, he was not entitled to a permanent residence card.

This distinction is not just an aspect of UK law: it is reflected in EU free movement law and has been highlighted in the past by the Court of Justice of the European Union. Family members are given directly enforceable rights. But when it comes to extended family members, EU free movement law only requires member states to “facilitate entry and residence” following the undertaking of an “extensive examination of the personal circumstances”. This puts durable partners in a much weaker position than spouses.

Doesn’t Brexit make all of this irrelevant?

Whilst this case was obviously very significant for Mr Kunwar, who is now left with no right to reside in the UK, you may question its wider application given that the UK is leaving the European Union. EU free movement law will come to an end on 31 December 2020 (or “as soon as possible” after 29 March 2019 in the event of no deal). However the case will still be of relevance post-Brexit. This is because Appendix EU, which contains the rules for the EU Settlement Scheme, continues the important distinction between spouses and durable partners (and, more generally, family members and extended family members).

The settled status scheme is open to anyone who is the “family member of a relevant EU citizen”. There is an extensive definition of this phrase within the rules. It includes a spouse, but only if the marriage took place before “the specified date” (31 December 2020 if there is a deal or 29 March 2019 if there is no deal) or the couple were in a durable partnership before that date. It also includes a durable partnership formed before the specified date. The definition of “durable partner” requires the partner to hold a residence document issued under the EEA Regulations. Anyone without such a document does not meet the definition of “durable partner”, does not meet the definition of “family member”, and is therefore not able to apply under the settled status scheme.

As such, the requirements under the EEA Regulations remain relevant post-Brexit as they serve as a gateway to the settled status scheme for durable partners and other extended family members. Any non-EEA durable partners currently in the UK without a residence document should obtain one as soon as possible as, in the event of a no deal Brexit, the opportunity to benefit from the settled status scheme will expire on 29 March 2019 (even if you subsequently marry your EEA partner).

Update: for Court of Appeal authority on the same point, see Secretary of State for the Home Department v Aibangbee [2019] EWCA Civ 339.