unmarried partner - 5 years starts when?

[lmb]

An unmarried partner is only recognised as a family member by the HO, exercising their discretion, after 2 years of cohabitation, or in otherwise exceptional circumstances. An unrecognised unmarried partner has no residence rights.

After 5 years, assuming treaty rights are exercised by the EEA National, and continuous residence, the non-EEA National family member automatically acquires permanent residence.

Does the unmarried partner, having demonstrated 2 years of prior cohabitation (a durable relationship), and attained to family member status, assuming the exercise of treaty rights and continuous residence, automatically acquire permanent residence 3 years after receiving the card? Or must he wait 5 years from the card date (i.e. 7 years from "serious" cohabitation).

I have had different answers to this question from various lawyers, and it isn't perhaps as simple as it looks at first.

On the face of it, because the unmarried partner requires recognition, it would seem that the clock only starts then. However, the residence card does not confer rights on family members, it merely confirms them (unlike with unmarried partners, who need recognition). Once the unmarried partner becomes a family member in the eyes of the law, you could argue that the entire length of the underlying durable relationship is what matters.

I would be more sceptical of this, except I just read a thread on this board where a couple married only for 3.5 years were able to include the prior unmarried period to get to the 5 years needed for PR (on appeal, but apparently an easy decision for the judge, according to the poster).

Would greatly appreciate any opinions, real-life examples, case history on this - thanks!

[sheraz7]

www.immigrationboards.com/viewtopic.php?t=137456

[lmb]

Thanks, I read that thread. You give an answer (that the clock starts with the issue of the card, for unmarried partners), but you don't really back it up. I appreciate all opinions, so thanks anyway. It's just I'm getting many yes/no answers from different, fairly serious lawyers, but what I really need is to be convinced in one direction or the other by some argument or judgement...

[Jambo]

Instead of asking people read it yourself - regulation 7(3).
Also

Only if a person has been recognised as an extended family member and issued with a residence card (or EEA family permit or registration certificate) is he to be treated as a “family member”, with consequential rights deriving from EU law.
Until an applicant is recognised as an extended family member and issued with a residence card (or EEA family permit or registration certificate) he has no rights deriving from EU law.

This is the law. If you manage to get time before RC issue date to be recognised, consider yourself lucky (I personally believe the judge was wrong in the case you referred to. Someone else in the forum tried to do the same and it took him over a year to get the appeal heard and at the end it was the HO that decided to withdraw the appeal. My view is that he got lucky because of the incompetence of the HO). You can have a different view of course.

[lmb]

I have read this before as well, and much more, as well as consulting widely on the subject, still to no conclusion.

Are you really unable to see that this passage is capable of a different interpretation to the one you think is self-evident? Perhaps:

"Extended family members could be making spurious claims. For example, a transitory or fake relationship could be wrongly presented as durable. Before we accept that such a relationship is durable we want to see evidence, such as 2 years cohabitation. At that point, we will accept that the unmarried partner is AND WAS in a durable relationship. To measure the DURATION of that durable relationship is a different matter, and can include retrospective serious time, such as living together. And as a recognised family member, we look through the permit/card to the relationship beneath, which the card is merely evidence of."

Apart from the fact that we can interpret this passage variously, we have before us two cases suggesting retrospective time counts (at appeal), and so far none that says it doesn't.

I don't have a confident view either way. Hopefully someone will come up with something I haven't seen, or that is decisive.