22 Feb EUSS and Durable Partners

The EUSS was devised to provide a way for European Economic Area (EEA) nationals and Swiss citizens to reside legally in the UK post Brexit and for their family members to be able to join them. It also allowed certain family members of “qualifying” British citizens who had returned to the UK after living together in an EEA country or Switzerland to apply for their UK immigration status.

Most EEA nationals have been able to submit their EUSS applications prior the deadline 30 June 2021, after the transition period ended on 31 December 2020 as per Withdrawal Agreement. However, the situation of couple in a durable relationship has proven to be somewhat more challenging to untangle.

Durable partners in the UK without a residence document

The Home Office has clarified that “The durable partner of an EU citizen resident in the UK before the end of the transition period (where the partnership was formed and was durable by then) is within scope of the Withdrawal Agreement where, in line with Article 10(2) their residence in the UK was facilitated in accordance with the Free Movement Directive before the end of the transition period, by obtaining a relevant document under the EEA Regulations.”

Article 10(2) in the Withdrawal Agreement states:

Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.

This article confirms that persons under (a) and (b) of Article 3(2) of Directive 2004/38/EC can retain their right of residence in the UK before the end of the transition period, or those people could enter and reside based on the Free Movement agreement in the host Member state. Article 3.2 read as below:

Article 3.2 Directive 2004/38/EC Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

Article 2 defines “family members”:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

The residence after 31 December 2020 is considered in Article 10(3):

Paragraph 2 (Article10(2)) shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.

This means that if durable partners applied for a document (to enter and stay in other host states) before the end of the transition period, and even if the permit had been issued afterward, the equivalent right would be retained – post transition.

Otherwise, unless they had another lawful basis to stay before the end of the transition period, such as a student visa (in which case they can apply to the EUSS and rely on alternative evidence that the partnership was formed and was durable by the end of the transition period), they will have been in the UK unlawfully.

If the partners were unlawfully the UK before the end of the transaction period, they cannot legalize their residence by simply applying for the EUSS scheme.

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