You could claim that at the time you were in a durable relationship with a qualified EEA citizen then, if your partner was respecting the EEA regulations
10.4 Durable partner
The applicant is (or for the relevant period was) in a durable relationship with the relevant EEA citizen (or qualifying British citizen or relevant sponsor), with the couple having lived together in a relationship akin to a marriage or civil partnership for 2 years or more, unless there is other significant evidence of the durable relationship.
The reference to the couple having lived together in a relationship akin to a marriage or civil partnership for at least 2 years is a rule of thumb, not a requirement. In circumstances where the couple have not lived together in a relationship akin to a marriage or civil partnership for at least for 2 years, you must consider whether there is other significant evidence of the durable relationship.
Other significant evidence of the durable relationship may include for example evidence of joint responsibility for a child (a birth certificate or a custody agreement showing they are cohabiting and sharing parental responsibility), evidence of shared financial responsibilities or business ventures, or evidence of regular communication and visits while living apart alongside definite plans concerning the practicalities of living together in the UK.
For a relationship to be akin to a marriage or civil partnership the couple must usually have lived together as a couple (not just as friends) and shown an ongoing commitment to one another. However, in some circumstances there may be evidence of a durable relationship akin to a marriage or civil partnership where the couple have not, or currently do not, live together.
An applicant can show cohabitation by evidence of shared living arrangements, such as mortgage agreements, tenancy arrangements or utility bills which show both partners living at the same address over the same period of time. Such evidence does not need to be in both names if it covers the same time period and the same address.
A relationship can still be recognised as meeting the requirement for a durable relationship where, for example, there is a good reason the partners were or are living apart which is still consistent with them having a relationship akin to a marriage or civil partnership. For example, they may have lived apart or currently do so because one party was or is studying or working elsewhere. In such circumstances you will need to be satisfied the relationship is durable even though they were or are living apart. For example, there may be evidence that although they are currently living apart, they have lived together in a durable relationship in the past and intend to do so again in the future.
However, in some cases the couple may not have lived together and you will need to be satisfied the relationship is akin to a marriage or civil partnership. In some countries, religious or cultural norms may prevent unmarried partners living together and you will need to assess whether the relationship is similar to a marriage or civil partnership, in that it is more than a boyfriend/girlfriend type relationship. Instead of evidence of cohabitation, you will want to see other evidence of a durable relationship such as evidence of regular communication, visits, holidays, events attended, financial support, joint care of any children the partners have together or any other evidence showing a durable relationship.
Where a same-sex couple have entered into their relationship in the UK or in a country where same-sex relationships are accepted, they will normally be expected to have cohabited unless there is a good reason they live apart. But in some countries same-sex relationships might not be recognised or accepted by the society, which in turn might make prevent same-sex partners living together. Where an applicant says this is the case, you must check the relevant Country Policy and Information Notes, to confirm this is consistent with the information available.
Applicants are not encouraged to provide photographic evidence or evidence of interaction over email, WhatsApp or other social media as they can be falsified and are difficult to verify. However, this does not mean that such evidence has no weight at all. You must consider all the information and evidence provided by the applicant in the round.
Where the couple have not lived together in a relationship akin to a marriage or civil partnership for at least for 2 years, you must consider in each case whether there is other significant evidence of a durable relationship, based on all the information and evidence provided by the applicant.
The durable partnership must not be (or have been) one of convenience; and neither durable partner has (or for the relevant period had) another durable partner, a spouse or a civil partner with immigration status in the UK or the Islands based on that person’s relationship with that durable partner.
Resident in the UK by 11pm on 31 December 2020
Where the applicant relies on being resident in the UK by 11pm on 31 December 2020 as the durable partner of the relevant EEA citizen (or qualifying British citizen) and does not hold a permanent residence document, the applicant must provide evidence of the family relationship for the relevant period, namely:
a relevant document as the durable partner of the relevant EEA citizen (or qualifying British citizen) for the period of residence relied upon, and evidence which satisfies you that the durable partnership remains durable at the date of application (or did so for the period of residence relied upon) - this evidence might, for example, take the form of:
evidence of cohabitation (such as bank statements or utility bills in joint names at the same address, residential tenancy or rental agreements or mortgage statements, official correspondence which links them at the same address)
evidence of joint finances, business ventures or commitments (such as tax returns, business contracts, investments)
This is not an exhaustive list and applications must be considered on a case by case basis.
Where the applicant is a durable partner of a relevant person of Northern Ireland, a relevant document means, in accordance with sub-paragraph (a)(i)(bb) of the definition in Annex 1 to Appendix EU, other evidence which satisfies the Secretary of State of the same matters under Appendix EU concerning the relationship as a document to which sub-paragraph (a)(i)(aa) refers. For the purposes of this provision, where the Secretary of State is so satisfied, such evidence is deemed to be the equivalent of a document to which sub-paragraph (a)(i) (aa) refers.
Where the applicant applies for a relevant document (as described in sub-paragraph (a)(i)(aa) or (a)(ii) of that definition in Annex 1 to Appendix EU) as the durable partner of the relevant EEA citizen (or qualifying British citizen) before the specified date and their relevant document is issued on that basis after the specified date, they are deemed to have held the relevant document since immediately before the specified date.
Joining on or after 1 January 2021
Where the applicant is applying after the specified date as a joining family member who is the durable partner of a relevant sponsor (or of a qualifying British citizen), they can provide a relevant document as the durable partner of the relevant sponsor (or qualifying British citizen) for the period of residence relied upon, and evidence which satisfies you that the durable partnership remains durable at the date of application (or did so for the period of residence relied upon).
Otherwise, the applicant must either:
not have been resident in the UK and Islands in any capacity before the specified date
not have been resident in the UK and Islands as the durable partner of the relevant EEA citizen (where that relevant EEA citizen is their relevant sponsor) on a basis which met the entry for ‘family member of a relevant EEA citizen’ in Annex 1 to Appendix EU (or as the durable partner of the qualifying British citizen), at (in either case) any time before the specified date, 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 example as a student) for that period – this means that a durable partner who did not hold a relevant document as the durable partner of a relevant EEA citizen for a period of residence in the UK and Islands before the specified date, and who did not otherwise have a lawful basis of stay in the UK and Islands for that period, cannot qualify as a joining family member on this basis
have been resident in the UK and Islands before the specified date, but their continuous qualifying period was interrupted by one of the following events, after which they were not resident in the UK and Islands again before the specified date, either:
absence or absences from the UK and Islands which exceeded a total of 6 months in any 12-month period, unless the absence absences fell within one or more of the specified exceptions
the applicant served a sentence of imprisonment of any length in the UK and Islands
have been resident in the UK and Islands before the specified date, and the applicant has then been absent from the UK and Islands for a period of more than 5 consecutive years (at any point since they last acquired the right of permanent residence in the UK under regulation 15 of the EEA Regulations, or the right of permanent residence in the Islands through the application there of section 7(1) of the Immigration Act 1988 (as it had effect before it was repealed) or under the Immigration (European Economic Area) Regulations of the Isle of Man, or since they last completed a continuous qualifying period of 5 years) and, after that, they were not resident in the UK and Islands again before the specified date
When considering whether a person with another lawful basis of stay in the UK and Islands before the specified date was the durable partner of a relevant EEA citizen before the specified date, only the period for which the person had another lawful basis of stay in the UK and Islands before that date can be considered for the purposes of assessing whether the partnership was durable before that date.
Where the above criteria are met, you must be satisfied by evidence provided by the applicant that the partnership was formed and was durable before the specified date (or before the date and time of withdrawal, where the applicant relies on being the durable partner of a qualifying British citizen before that point), and that the durable partnership remains durable at the date of application (or did so for the period of residence relied upon).
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.
Example
A is a non-EEA citizen who formed a partnership relationship with B, an EEA citizen resident in the UK, in September 2018. A was subsequently granted 30 months’ leave to remain in the UK on 1 February 2019 under Appendix FM to the Immigration Rules. Before that, A had been in the UK for several years without a lawful basis of stay. 1 February 2019 will therefore be the point from which you can assess whether, in respect of A’s application to the scheme as the family member of a relevant EEA citizen, A’s partnership relationship with B was durable before the specified date.
