Who qualifies as a “durable partner” under the EU Settlement Scheme?

…some parts of the rules relating to the EU Settlement Scheme are so difficult to comprehend that it is at least arguable that they lack the clarity of law.
An aspect of the definition of a ‘durable partner’ contained in Annex 1 of Appendix EU (definitions) is one such example.
Upper Tribunal Judge Canavan

Those were the words of Upper Tribunal Judge Canavan, trying to decipher the definition of “durable partner” under the EU Settlement Scheme. This post is my best attempt at simplifying this incredibly convoluted definition.

What does “durable partner” mean anyway?

Durable partners are those couples who are not married or in a civil partnership, but who are nonetheless in a committed relationship. Under other parts of the immigration rules, the requirements are quite strict: unmarried partners must show that they have been living together for two years in a relationship akin to marriage to qualify. The rules for durable partners under the EU Settlement Scheme are a bit more flexible. The starting point, and the easiest way for a couple to show that they are durable partners, is still to have lived together for two years. However, the scheme also allow applicants to show “other significant evidence of the durable relationship”.

The Home Office guidance is very helpful in terms of what will generally be accepted as “other significant evidence” of a durable relationship, including (but not limited to) evidence of joint responsibility for a child and evidence of shared financial responsibility.

The guidance also helpfully confirms that a couple does not need to be living together at all. Couples may have lived apart because one member was studying or working elsewhere; because of religious or cultural norms; or because they are a same-sex couple from a country who would not tolerate them living together. In those cases, the Home Office would still expect to see evidence of a committed relationship, such as evidence of visits to see each other, regular communication, financial support etc.

Ultimately, although there is some flexibility around the need to have cohabited, and the length of that cohabitation, the Home Office would only accept as “durable” a relationship which is shown to be serious and committed. They must accept that there is a genuine and realistic likelihood of the relationship continuing long-term. Two 18-years old who have just met and who live at their respective parents are unlikely to meet the definition, as much as they may swear their eternal love. By contrast, two 30-year-olds with a baby are likely to meet the definition, even though they may only have moved in together recently.

Example

We are in December 2020. Paola is a Spanish national with pre-settled status in the UK. In February 2020, she met Juan, a Mexican national. They fell madly in love and by April 2020 they were spending most nights together, even though they have not officially moved in and each still have their own flat. In August 2020, Juan proposed to Paola. However, due to COVID restrictions, they haven’t been able to get married yet. Paola has also recently found out that she is pregnant and due in mid-2021.

Although Juan and Paola have not lived together for 2 years, they can probably show that they are durable partners by submitting evidence that they spend most nights together; that they are due to get married; and that Paola is expecting a baby. It will be important, however, to submit as much evidence as possible of their relationship and commitment to each other. Evidence could include detailed statements explaining the history of their relationship, why they have not officially moved in (e.g. they cannot terminate their tenancy agreements); letters from friends and family who are aware of their relationship (and their respective flatmates, if any, confirming that they have witnessed them staying at each other’s); Oyster card statements showing that they go to and from each other’s places regularly; evidence of contact with the Registry to give notice of intention to marry; evidence of Paola’s pregnancy and that Juan has attended antenatal appointments etc.

We do know that a durable relationship should not be one of “convenience”, which is, simplifying slightly, a relationship entered into as a means to circumvent the requirements of the immigration rules.

Further, neither member of the couple should have another durable partner, spouse or civil partner who is in the UK with immigration status based on their relationship.

Example

Our Paola had got married to a British citizen four years before she met Juan. The marriage did not last long and within a year, they went their own way. However, they remained friends and did not bother with the paperwork to get divorced.

The fact that Paola is married to someone else does not preclude her from meeting the definition of “durable partner”, because her status in the UK is not based on said marriage.
(Paola will, however, need to get divorced before being able to marry Juan).

Date of the start of the relationship matters

It matters whether the durable relationship began before or after 31 December 2020. This was the date of Brexit.

A durable partner applying under the EU Settlement Scheme must show that they were in a durable relationship prior to 31 December 2020. Those whose relationship started after that date, or whose relationship was not “durable” prior to that date, will need to apply under Appendix FM of the rules instead.

Example

If Paola had only met Juan in early December 2020, no matter how quickly they fell in love and decided to pursue a relationship, it is unlikely that they could show that they were “durable partners” by 31 December 2020. If Juan wanted to make an application under the EU Settlement Scheme on the basis of the relationship, the couple would need to get married before 31 December 2020, so that Juan can apply as a spouse. If that were not possible, Juan would need to apply under Appendix FM, once he meets the rules to do so.

Applicants who apply on the basis that they were resident in the UK prior to 31 December 2020 must show that they already had a document issued as a durable partner under the EEA Regulations, or that they had applied for one before 31 December 2020. The Upper Tribunal confirmed this requirement is lawful and not contrary to the Withdrawal Agreement in the cases of Celik and Batool.

There will be fewer and fewer of these applicants as the deadline to apply was 30 June 2021. Anyone seeking to apply now would need to show that they had a “reasonable ground” for applying late.

The position of those who had lawful leave in the UK on a different basis is unclear, and that was precisely the issue in the case where Judge Canavan, quoted above, came to the conclusion that the rules were undecipherable. It does seem from this letter by the Home Office that their position is that this cohort could apply as durable partners on the basis that they were resident in the UK prior to 31 December 2020, as long as they can show that their relationship was durable prior to that date. Those individuals could, though, also simply apply as “joining family members”, as set out below.

Durable partners applying as “joining family members”

Joining family members are typically understood as those who were in a relationship by 31 December 2020, but who had not moved to the UK by then. However, this route can also be relied on by those who lived in the UK before 31 December 2020 but who did not meet the stringent requirements above regarding having or having applied for a document issued under the EEA Regulations.

These individuals must show that:

They have not been resident in the UK before 31 December 2020; or
They were resident in the UK before 31 December 2020 with an immigration status other than that of a durable partner; or
They were resident in the UK before 31 December 2020 but they have broken the continuity of their residence, by being out of the UK for more than 6 months in any 12 months period, or by serving a period of imprisonment
They were permanent residents in the UK before 31 December 2020, but lost that status by being out of the UK for more than 5 consecutive years

Example

Juan had arrived in the UK as a visitor in 2019, and overstayed his visa. He did not appreciate that he had to apply for an EEA Residence Card before December 2020. This means that, to apply under the EU Settlement Scheme, Juan will need to leave the UK, stay out for six months, and then apply as a joining family member. It would be sensible, during those six months, for Paola to try and visit him as much as possible, to prove that they continue to be durable partners.

Joining family members who are outside the UK do not have a deadline to apply to the scheme, although in some circumstances showing that the relationship is durable may be harder and harder the longer the couple lives apart.

Joining family members who are in the UK should apply within three months of their arrival, or provide a “reasonable” explanation for applying late.

Conclusion

It is likely that we will see very few new applications made by “durable partners” under the EU Settlement Scheme. After all, the majority of partners who were in a durable relationship by 31 December 2020 and who are eligible under the scheme will have applied already. However, the definition has been written in such a complex manner that I am sure we have not seen the end of litigation arising out of it. With that in mind, we hope this post can serve as a good starting point to clarify what a durable partner is.