Non-EEA durable partner without relevant document

[roggo]

Hi all,

I am an EU citizen with settled status. My non-EEA partner had submitted a late application to the EUSS which was valid due to her having a Skilled Worker Visa at the time.

Despite submitting evidence of contiuous cohabitation and partnership since July 2018 she has been given pre-settled status and been classed as a ‘joining family member (JFM)’ rather than a 'family member'. This has significant impact on when she will be able to get settled status (i.e. 2028 rather than now).

I believe this is decision is wrong and I am looking for help to substantiate our response to the caseworker and further steps. Any help or advice is greatly appreciated!

From reading on this and other forums I gather that the error seems to be due to the confusion caused by the double negative wording in the definition of durable partner in Appendix EU:

"(ii) where the person is applying as the durable partner of a relevant sponsor [...] and does not hold a document [...] unless (in the former case):
- the reason why they were not so resident is that they did not hold a relevant document as the durable partner of that relevant EEA citizen for that period; and
- they otherwise had a lawful basis of stay in the UK and Islands for that period; or [...]"

It would be great to hear from others that know about this technicality and/or have successfully navigated this situation.

[secret.simon]

I think the caseworker is correct in this case.

Even pre-Brexit, the clock towards permanent residence for "durable partners" of EEA citizens started after they were issued a BRC by the Home Office. The period before the issue of the BRC was not counted towards the clock for PR.

In other words, the clock for partners of EEA citizens started when that relationship was recognised by the state, with either marriage (in the case of spouses) or the issue of a BRC (in case of a durable partner).

I am not sure why you have gone into the definition of a durable partner. If she has been issued pre-settled status, that means that she has been recognised as your durable partner. I don't think there is any doubting that.

It is just that the clock for her starts now, after she has been given pre-settled status.

Since you have taken the trouble to go through the text of the Immigration Rules (which I applaud. It is great that you are going through the text of the law rather than just the guidance), you may want to lave a look at Rule EU11 (Persons eligible for indefinite leave to enter or remain as a relevant EEA citizen or their family member) and EU11A (Persons eligible for indefinite leave to enter or remain as a joining family member of a relevant sponsor) to see where your partner would fit in to get Settled Status directly.