Can durable partner get settled status without relevant document?

Jajko007 · Post by **Jajko007** » Wed Aug 03, 2022 4:18 pm

Hello, I know the topic has been discussed before on whether a durable partner needs a relevant document.

In appendix EU, this is listed:

"where the person is applying as the durable partner of a relevant sponsor (or, as the case may be, of a qualifying British citizen), or as the spouse or civil partner of a relevant sponsor (as described in sub-paragraph (a)(i)(bb) of the entry for ‘joining family member of a relevant sponsor’ in this table), and does not hold a document of the type to which sub-paragraph (b)(i) above applies, and where (...)

was not resident in the UK and Islands as the durable partner of a relevant EEA citizen (where that relevant EEA citizen is their relevant sponsor) on a basis which met the definition of ‘family member of a relevant EEA citizen’ in this table, or, as the case may be, as the durable partner of the qualifying British citizen, at (in either case) any time before the specified date, unless the reason why, in the former case, they were not so resident is that they did not hold a relevant document as the durable partner of a relevant EEA citizen for that period (where their relevant sponsor is that relevant EEA citizen) and they did not otherwise have a lawful basis of stay in the UK and Islands for that period"

Doesn't this mean if your residence in the UK is not reliant on being a durable partner (i.e. you had other lawful means of being in the UK, such as a visa) then you do not need a relevant document?

Also in this guidance (pg.120)https://assets.publishing.service.gov.u ... embers.pdf

The effect of the above provisions is that, where, at the specified date, a person was continuously resident in the UK and Islands as the durable partner of a relevant EEA citizen (where that relevant EEA citizen is their relevant sponsor) and did not hold a relevant document as that durable partner, they must (unless they otherwise had a lawful basis of stay in the UK and Islands for that period, for example as a student) break their continuity of residence in the UK and Islands before they can apply as a joining family member and the durable partner of the relevant sponsor. They can then rely on the evidence referred to in the previous paragraph. In such a case, the person’s continuous qualifying period as a joining family member of a relevant sponsor can only have commenced on or after 1 January 2021

When does the continuous period of the durable partner start? It says unelss they were a student, they would need to break their continuity of residence before applying.

Thank you.

kamoe · Post by **kamoe** » Thu Aug 04, 2022 9:16 am

Jajko007 wrote: ↑
Wed Aug 03, 2022 4:18 pm
Doesn't this mean if your residence in the UK is not reliant on being a durable partner (i.e. you had other lawful means of being in the UK, such as a visa) then you do not need a relevant document?

It seems that is the case, yes. If the applicant had another lawful basis other than durable partner, and they are applying after 31st December 2020 (the specified date); then then they will meet conditions (aa),(bb), and (aaa), which because the conditions listed after (aaa) are alternative (meeting only one is enough), meeting (aaa) seems sufficient to meet the definition of durable partner who does not need a relevant document (ii).

(ii) where the person is applying as the durable partner of a relevant sponsor (or, as the case may be, of a qualifying British citizen), or as the spouse or civil partner of a relevant sponsor (as described in sub-paragraph (a)(i)(bb) of the entry for ‘joining family member of a relevant sponsor’ in this table), and does not hold a document of the type to which sub-paragraph (b)(i) above applies, and where:
(aa) the date of application is after the specified date; and
(bb) the person:
(aaa) was not resident in the UK and Islands as the durable partner of a relevant EEA citizen (where that relevant EEA citizen is their relevant sponsor) on a basis which met the definition of ‘family member of a relevant EEA citizen’ in this table, or, as the case may be, as the durable partner of the qualifying British citizen, at (in either case) any time before the specified date, unless the reason why, in the former case, they were not so resident is that they did not hold a relevant document as the durable partner of a relevant EEA citizen for that period (where their relevant sponsor is that relevant EEA citizen) and they did not otherwise have a lawful basis of stay in the UK and Islands for that period, or(...)

When does the continuous period of the durable partner start? It says unelss they were a student, they would need to break their continuity of residence before applying.

No. It says that unless they had a legal basis of stay (for example, but not necessarily, as a student), then they need to leave the UK and apply from abroad. This means it is not acceptable to apply within the UK and accumulate previous residence if the applicant had no previous legal basis. Therefore:

If applicant did not have another legal basis of UK residence, they need to leave the UK; continuous period can only start on or after 1st January 2021.

If applicant had another legal basis of UK residence (Student, Worker, etc.), they can apply within the UK, continuous period starts when they can justify it does.

Jajko007 · Post by **Jajko007** » Thu Aug 04, 2022 10:35 am

Thank you for replying. Then say my partner (partner has settled status) and I have been together for 6 years, and cohabited for 4 years. My residence has always been lawful for that period (student visa / skilled worker visa). Could I argue for settled status?

If they were to give pre settled status, do I have to wait 5 years before applying for settled or would they allow me to apply earlier?

kamoe · Post by **kamoe** » Thu Aug 04, 2022 2:23 pm

Jajko007 wrote: ↑
Thu Aug 04, 2022 10:35 am
Then say my partner (partner has settled status) and I have been together for 6 years, and cohabited for 4 years. My residence has always been lawful for that period (student visa / skilled worker visa). Could I argue for settled status?

This one is easy: No. At best you can argue 4 years of durable partnership, yet Settled Status requires 5.

If they were to give pre settled status, do I have to wait 5 years before applying for settled or would they allow me to apply earlier?

This one is hard: I am not sure. At worst, your durable partnership might be considered to start the moment they give you Pre-Settled Status, not before, and that means you would need to wait for 5 years from that moment to be eligible for Settled Status. That would be in line with the rationale of the old EEA Residence Card for durable partners: the start of the relationship was always the issue date of the card, not the 2-year anniversary of the cohabitation.

But I am not really sure what the rules are for EUSS cards. I gave it a general read to the Annex EU and I don't think it is spelled out when the durable partnership is supposed to start in this case. Curious to see if anyone else has a more concrete answer.

Jajko007 · Post by **Jajko007** » Fri Aug 05, 2022 9:01 am

Thank you Kamoe, this is so helpful.

In the guidance it says that a joining family member will qualify when they have completed 5 yrs of continuous residence after the specified date. What is the specified date?

Pg.103

https://assets.publishing.service.gov.u ... embers.pdf

Would the HO be able to exercise discretion if we can explain why we were unable to live together for the first year of our relationship?

Thank you

kamoe · Post by **kamoe** » Tue Aug 09, 2022 9:41 am

Jajko007 wrote: ↑
Fri Aug 05, 2022 9:01 am
What is the specified date?

December 31st 2020.

But from the wording of the guidance, durable partners who had another legal basis of stay before the specified date can accumulate time spent before the specified date. So it does not necessarily mean the 5 years start on December 31st 2020, they can start when you can justify they start. Problem is, as I said above, it does not seem to be a rule of thumb written down to specify when that date is for durable partners (start of cohabitation?, 2 years after cohabitation?, another date?, it's not clear to me).

Would the HO be able to exercise discretion if we can explain why we were unable to live together for the first year of our relationship?

A relationship that is not akin to marriage is not eligible, no matter how you want to backdate it. So the first year of your relationship does not count. This does not really matter as your relationship is eligible after that. But I would abandon all expectation of getting Settled Status, that is not going to happen.

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Can durable partner get settled status without relevant document?

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