EU settlement scheme with the couple being separated

[zimba]

Hi guys. I have a query to ask on behalf of a friend who has been under the EU residence rules and wants to see his options going forward as the EU settlement scheme will soon come to an end. So here it goes:

He has been married to an EU national since 16/11/2015 but they started living together from 2014 onwards. He applied for EU residence card in January 2016 and got his residence card in June 2016 valid until June 2022. Their marriage broke down and they ended up separating in April 2017. His spouse filed for divorce at the end of 2017 but they did not go through with it. So they remain still married legally but they have been separated since 2017. Their separation was amicable and she is happy to help with any documents. My friend has moved on and has been in a relationship with another EU national with pre-settled status (soon to be settled) and they have plans to get married in the future.

I believe he could have applied under EU settlement scheme via Retained Right of Residence but as they were not living together for 3 years (despite still being married) he will fail to demonstrate that the marriage was subsisting. I believe as per my knowledge of the Appendix EU that he may not be eligible to apply under EU settlement scheme but I would like others who have had more experience with the EU rules to have a look and see if I am missing something.

My advice to him would be that he better get a divorce, marry his new settled fiance and apply under family visa route instead as he is not eligible under the EU settlement scheme. Any other opinion on this case is highly appreciated.

[Zerubbabel]

got his residence card in June 2016 valid until June 2022

Are you sure from this one? That's 6 years validity. Usually they give 5 years for these cards.

What can he lose if he applies under the EU Settlement Scheme? Eligibility with this scheme seems a bit of a hit and miss.

If he does nothing, by June 2021 he will have hard time convincing anyone about any right in the UK with the EEA card. I am not even sure he would be legal in the UK at all.

[kamoe]

My advice to him would be that he better get a divorce, marry his new settled fiance and apply under family visa route instead as he is not eligible under the EU settlement scheme. Any other opinion on this case is highly appreciated.

Would you say, right now, in this very second, that your friend is a legal resident in the UK?

If your answer is yes, then there is no reason to think he is not eligible for the EU Settlement Scheme.

Since he is still legally married, then he is still a legal resident by virtue of his legal marriage to a current EU resident. And it follows that applying to the EU Settlement Scheme by virtue of that still-existing, legal marriage is all a valid procedure. As far as I know there is no requirement to prove recent cohabitation/subsistence of the relationship for married couples. Since the marriage has not legally ended, this is not a misrepresentation of the truth.

So I would go the entirely opposite direction of your advice. Not only is he eligible to apply to the EU Settlement Scheme right now, he would also get Settled Status straight away (he applied for his first residence card 5 years ago, which means he's been resident and married to a EU citizen at least for 5 years).

Obviously this is just my amateur interpretation of the rules and the information available right now. Others with more real-life experience are more than welcome to confirm or correct.

[kamoe]

As far as I know there is no requirement to prove recent cohabitation/subsistence of the relationship for married couples.

Obviously I might be completely wrong, I have not been able to confirm if this is the case. Again, if some one has first-hand experience on the kind of evidence needed for married couples, by all means please share your thoughts

[Zerubbabel]

As far as I know there is no requirement to prove recent cohabitation/subsistence of the relationship for married couples.

When you first apply under EEA route, they look closely. They can even organise an interview to see if the relationship is genuine. But when you go from EEA to EUSS, the fact that you are married is enough. The EUSS is just to transfer your existing rights not to open a new immigration case.

I think the guy has nothing to lose by applying under EUSS. He can get a Settled status just like that and it would end of his troubles immigration-wise. Worst case scenario, they refuse but this won't make his situation any worse. The guy is married to an EEA national who seems keen in having him in the UK. I don't see why he doesn't qualify. In the future they may divorce, they may return together or they may stay separate and married... nobody knows. But immigration cases are based on the situation now not about potential evolutions.

I would go EUSS on the rational that it's within reach and there is nothing to lose attempting that.

[zimba]

@Zerubbabel He lost his card in 2017 and applied for a new card which was granted for another 5 years, hence having a card valid until June 2022.

He has been travelling outside the UK and recently was admitted without issues so I assume his residence is fine and legal. I understand where you guys coming from however I have to say that my view was that the relationship has to be subsisting/genuine. The caseworker guide mentions 'marriage of convenience' as I thought him being legally married but separated might categorise his marriage as such. It seems providing an EU residence card and marriage certificate is enough for the spouse of an EEA natioal. As his spouse is happy to help, I agree he has nothing to lose by giving the EU settlement scheme a shot.

Thanks a lot guys for your input and help

[kamoe]

@Zerubbabel He lost his card in 2017 and applied for a new card which was granted for another 5 years, hence having a card valid until June 2022.

Keep in mind all EEA Residence Cards are only valid until June 30th 2021, not the date printed on the card.

The caseworker guide mentions 'marriage of convenience' as I thought him being legally married but separated might categorise his marriage as such.

Well, that very definition on that very document goes as follows:

A civil partnership, durable partnership or marriage of convenience is defined as a civil partnership, durable partnership or marriage entered into as a means to circumvent either:
• any criterion the party would have to meet in order to enjoy a right to enter or reside in the UK under the EEA Regulations
• any other provision of UK immigration law or any requirement of the Immigration Rules
• any criterion the party would otherwise have to meet in order to enjoy a right to enter or reside in the UK under EU law
• any criterion the party would otherwise have to meet in order to enjoy a right to enter or reside in the Islands under the Islands law

The key is the wording "entered into". Your friend entered into his marriage as a genuine couple, not because he wanted to circumvent any criteria at the time. The definition does not say anything about the subsisting of a marriage over time.