Apply for EEA residence card as a durable partner

Hi everyone!

I am considering apply for a residence card to be issued under EEA regulations, as a durable partner of my fiance. We were due to get married this month, but the wedding was cancelled due to the fresh national lockdown... Initially I was going to apply for EU settlement scheme as a spouse, but from reading the rules it's unclear whether to apply as a spouse, we will need to have been married by Dec 31, 2020, which is not possible given the current situation.

So most likely I will need to apply under EUSS as a durable partner, which requires me to hold a relevant document (residence card in this case). We have been living together for more than 2 years and have proof of this.

I have a few questions:

1. I have an ILR application pending with the Home Office (EUSS is my backup plan). I understand that you can't have 2 applications pending at the same time. But I have heard that ILR is under UK law, while EEA residence card is under EU law, so I can have 2 pending applications without inadvertently withdrawing the ILR application. Is this correct?

2. the EEA residence card will not be valid after Dec 31, 2020, but that doesn't matter anyway because I'm only using it to apply for EUSS. Let's say if I apply for this on Dec 30, and it takes a while to process the application, by the time I receive the EEA residence card it would not be valid, but is it okay if I'm only using it for EUSS?

3. Regarding whether I can still apply under EUSS as a spouse WITHOUT applying for an EEA residence card: the official definition of a family member in appendix EU is as follow:

"...
(a) the spouse or civil partner of a relevant EEA citizen, and:
(i) the marriage was contracted or the civil partnership was formed before the specified date; or
(ii) the applicant was the durable partner of the relevant EEA citizen before the specified date (the definition of ‘durable partner’ in this table being met before that date rather than at the date of application), and the partnership remained durable at the specified date..."

Re: (i) we will get married likely in Jan or Feb 2021, but this will be after the specified date (Dec 31, 2020); and re: (ii) we will have been living together in a relationship akin to marriage for more than 2 years, but I do not hold a relevant document (residence card or family permit). Do we satisfy the part about "definition of ‘durable partner’ in this table being met before that date rather than at the date of application"?

Keep in mind the definition of "durable partner" in Appendix EU is as follow:
"...
(a) the person is, or (as the case may be) for the relevant period was, in a durable relationship with a relevant EEA citizen (or with a qualifying British citizen), with the couple having lived together in a relationship akin to a marriage or civil partnership for at least two years (unless there is other significant evidence of the durable relationship); and
(b) the person holds a relevant document (as described in sub-paragraph (a)(i) or (a)(ii) of that entry in this table) as the durable partner of the relevant EEA citizen (or of the qualifying British citizen) for the period of residence relied upon, unless the date of application is after 31 December 2020 and the person was resident outside the UK at that date; and..."

Thank you in advance for your input!

aclondon wrote: ↑

Mon Nov 02, 2020 4:31 pm

from reading the rules it's unclear whether to apply as a spouse, we will need to have been married by Dec 31, 2020

You need to have married by Dec 31st 2020, since the family relationship needs to have started before the end of the transition period.

You can liken the fact of becoming a family member of a EU national with the fact of joining an EU national in the UK. In both cases, a new person "joins" their EU family member's household, and the conditions of this new member of the family are spelled out to need to have existed prior to December 31st 2020:

https://www.gov.uk/settled-status-eu-ci ... ss-citizen

The deadline for you to join your family member in the UK is 31 December 2020 (or 31 December 2025 if your partner is Swiss and you get married or form a civil partnership after 31 December 2020).

If you’re not living in the UK by the deadline, you’ll still be able to apply if all of the following are true:

• your family member has either settled or pre-settled status

• your relationship began before 31 December 2020

• you remain a close family member, for example a spouse, civil partner, unmarried partner, a dependent child or grandchild, or a dependent parent or grandparent

The family relationship in your case means the married relationship; unmarried partners are not family members unless they have a EEA RC as an unmarried durable partner.

So most likely I will need to apply under EUSS as a durable partner, which requires me to hold a relevant document (residence card in this case). We have been living together for more than 2 years and have proof of this.

You are cutting this close. A month ago, the average processing times for EEA RC cards was reported to be 6-7 months. Luckily the latest reports show processing times of between 1-2 months. A better perspective, still possible, but really time is running out if you want to have a EEA RC this year.

1. I have an ILR application pending with the Home Office (EUSS is my backup plan). I understand that you can't have 2 applications pending at the same time. But I have heard that ILR is under UK law, while EEA residence card is under EU law, so I can have 2 pending applications without inadvertently withdrawing the ILR application. Is this correct?

You can only have one application under the same regulation, and likewise, only one visa or residence permit under the same regulation.
You can have two applications, and likewise, two valid visas or residence permits, provided they are issued under different regulations.

You already have an application for ILR, which is UK regulation.

The EEA RC is EU regulation => Will not interfere with your pending ILR application.
The EU Settlement Scheme is UK regulation => Will interfere with your pending ILR application. The first of the two that gets issued will cancel the other.

2. the EEA residence card will not be valid after Dec 31, 2020, but that doesn't matter anyway because I'm only using it to apply for EUSS. Let's say if I apply for this on Dec 30, and it takes a while to process the application, by the time I receive the EEA residence card it would not be valid, but is it okay if I'm only using it for EUSS?

I would not bank on this. I hope I am wrong, but there is a chance that you encounter difficulties if you do not get your EE RC before December 31st 2020. See this post.

3. Regarding whether I can still apply under EUSS as a spouse WITHOUT applying for an EEA residence card

You cannot.
It's spelled out that unmarried partners need to have a EEA-issued RC to be able to apply to the EU Settlement Scheme: https://www.gov.uk/guidance/eu-settleme ... eu-citizen

If you’re their unmarried (durable) partner
You must hold a relevant document issued to you under the EEA Regulations on the basis that you’re the durable partner of an EEA or Swiss citizen or person of Northern Ireland.

A relevant document here includes:

• a family permit

• a residence card

Re: (i) we will get married likely in Jan or Feb 2021, but this will be after the specified date (Dec 31, 2020);

So you do not meet the requirement specified by (i)

re: (ii) we will have been living together in a relationship akin to marriage for more than 2 years, but I do not hold a relevant document (residence card or family permit).

So you do not meet the requirement specified by (ii) either.

Do we satisfy the part about "definition of ‘durable partner’ in this table being met before that date rather than at the date of application"?

No, because...

"...
(a) the person is, or (as the case may be) for the relevant period was, in a durable relationship with a relevant EEA citizen (or with a qualifying British citizen), with the couple having lived together in a relationship akin to a marriage or civil partnership for at least two years (unless there is other significant evidence of the durable relationship); and
(b) the person holds a relevant document (as described in sub-paragraph (a)(i) or (a)(ii) of that entry in this table) as the durable partner of the relevant EEA citizen (or of the qualifying British citizen) for the period of residence relied upon, unless the date of application is after 31 December 2020 and the person was resident outside the UK at that date; and..."

You do not hold a EEA RC and you are not resident outside the UK.

Sorry, I just realised you want to apply for the EUSS as a spouse, after you get married?

This won't work, as you need to have gotten married in 2020.

Also, given you already applied and paid for your ILR... why do you want to do this?

kamoe wrote: ↑

Mon Nov 02, 2020 7:47 pm

Sorry, I just realised you want to apply for the EUSS as a spouse, after you get married?

This won't work, as you need to have gotten married in 2020.

Also, given you already applied and paid for your ILR... why do you want to do this?

Thanks kamoe, bad news then, but I guess that makes sense. I applied for ILR Set O with in-person biometrics appointment but haven't heard back after a while, even though Set O is supposed to be straightforward.
I'm quite worried if it is not granted for some reason, so I'm looking into backup options.

What about applying under Appendix FM (my fiance has settled status), if EUSS doesn't work out? I heard on the forum that it's better to apply under EU law than UK law, and I wonder what the main difference is?

Thanks again for taking the time! I know my previous post was a bit long

aclondon wrote: ↑

Mon Nov 02, 2020 4:31 pm

Let's say if I apply for this on Dec 30, and it takes a while to process the application, by the time I receive the EEA residence card it would not be valid, but is it okay if I'm only using it for EUSS?

kamoe wrote: ↑

Mon Nov 02, 2020 7:41 pm

I would not bank on this. I hope I am wrong, but there is a chance that you encounter difficulties if you do not get your EE RC before December 31st 2020.

For the benefit of future readers, the changes to the Immigration Rules that take effect on 31 December 2020 at 23:00 GMT specify that a UK-issued "relevant document", like an EEA residence card or EEA family permit, issued after that date based on an application submitted before that date will be regarded as having been held before that date.

For more information about this and the other changes (like the formal terms of the process to bring a family member to the UK after 31 December 2020), see my comment of 14 December on the post on this website named "World of caution for unmarried/durable partners [except partners of people from Northern Ireland]" .