EEA Family member (unmarried couple) Help

[itstime]

We are a couple of an Italian (myself writing) and a South Korean national currently looking to apply for a family member of an EEA national visa. We would preferably apply for an unmarried visa with the aim to progress to marriage in the near future.

We have been in a relationship since June 2014, met in London when she was on a 2 years Tier 5 visa "young mobility scheme" (valid march 2014/2016). Before her visa ended, she left the UK to finish her degree but returned several times to UK to stay together. I have been in UK since Apr 2013.

We are unsure about the "lived together in a relationship akin to marriage or civil partnership for at least 2 years" and I would greatly appreciate any form of advice from you.

The below months refer to the period we can prove we have cohabited as she was in UK:

2015
5-6-7-8-9-10-11-12
Total 8 months

2016
1-2-AWAY/KOREA-7-8-AWAY/KOREA-12
Total 5 months

2017
1-2-AWAY/KOREA-7-8-9-10-AWAY/KOREA-12
Total 6 months

We can prove cohabiting together with bank accounts & GP linked to the same address. We can prove we have maintained our relationship while she was away (I also visited her country this year). We have been abroad several times.
She is currently in Korea and is returning on the 15th of December on an holidays visa and hopefully able settle together again.

Can we apply for unmarried family member on the above basis? Is it better to apply once she arrives or before?

Thanks

[itstime]

Anyone with some advices please?
Thank you

[Casa]

It's not a questions of 'maintaining your relationship' while your partner has been living outside of the UK. 6 months apart breaks the continuity of the required 2 year co-habitation in a relationship 'akin to marriage'.

It's not simply a case of proving 'co-habitation. You would also have to provide documented evidence during the 2 year qualifying period, such as joint bank account/finances, tenancy or mortgage in joint names, both names on utility bills/Council tax etc.

[itstime]

Hi Casa,
really appreciated bringing some clarity on my confusion
Please see below my doubts :

It's not a questions of 'maintaining your relationship' while your partner has been living outside of the UK. 6 months apart breaks the continuity of the required 2 year co-habitation in a relationship 'akin to marriage'.

We haven't been 6 months continuously apart (we tried to spread these periods). I believe the max amount of time was below 5 months due to her mandatory university attendance

In summary :
2014 (March starts Tier 5)
All year uk, relationship starts in June, no cohabitation.

2015 (still tier 5)
Starts cohabitation in May
Total of 8 months

2016
End tier 5 in March, she flies away in Feb for 4 months.
Back on holiday visa end of June to end of August.
She flies away for 3 months and is back on holiday in December.
Total of 5 months of cohabitation (spread on the whole year)

2017
End of Feb she flies for 5 months.
Back from July to October.
She flies out for final university exam, and expected to be here for Christmas.
Total 6 months

One this matter, does she have here entry at risk when/if she ll be back in December as she will be more than 6 months in the UK this year ?

It's not simply a case of proving 'co-habitation. You would also have to provide documented evidence during the 2 year qualifying period, such as joint bank account/finances, tenancy or mortgage in joint names, both names on utility bills/Council tax etc.

Unfortunately we don't have joint accounts or joint bills backdated (did not foresee and were in a shared flat ). We have our accounts, bank transfers, personal correspondence linked to the same address.

[Casa]

To be honest, if she has been entering on a visitor visa there may well be a refusal on her next visit if she is spending more time in the UK in a 12 month rolling period than she is spending in her home country.

The co-habitation evidence may be compromised if you were living together in shared accommodation and have scant evidence of joint commitments (finances etc). The Case Worker could consider you as housemates rather than a couple in a relationship 'akin to marriage', especially with the frequent absences.

[itstime]

Thanks, we have also looked to get legal advice on our case but is important to listen different sources.

We don't want to risk a separate Christmas, unfortunately absences were due to mandatory attandance to complete her degree (otherwise she would have lost it). We have prove of several travels abroad including visiting mine and her family in Korea.

Could a marriage help?

[Casa]

Thanks, we have also looked to get legal advice on our case but is important to listen different sources.

We don't want to risk a separate Christmas, unfortunately absences were due to mandatory attandance to complete her degree (otherwise she would have lost it). We have prove of several travels abroad including visiting mine and her family in Korea.

Could a marriage help? Yes, as you would only have to prove you are in a genuine relationship, not a relationship 'akin to marriage'.

[kovacsma]

To the OP, hopefully the advice I give below is not too late. It contradicts the other advice given, but it comes from a solicitor and includes references to case law that the Home Office should be considering when evaluating your application. Whether or not the case worker cares about case law / precedence and abiding by the law --- can't say for sure...

Anyways, our solicitor advised putting the following into the cover letter of our application, as we are applying with similar circumstances to yours:

While it is understood that the Home Office intermittently applied a rule of thumb of two years' cohabitation when assessing whether the partner of an EEA national is indeed in a durable relationship with the EEA national, the present guidance titled "Extended Family Members" recognizes that if there is less than two years' evidence, the decision maker can still accept that there was evidence that their relationship is durable.

Further, there is no European Union definition of "durable", so each case must be looked at on its own facts. In JB (EEA Regulation 17 (4) proper approach) Ivory Coast 2008 UK AIP00062, the Tribunal held that national law must not seek to define community law terms, and it would be wrong to equate this concept of "durability" with living together in a relationship akin to marriage which has subsisted for two years or more. A relationship may further be durable whether it has entailed cohabitation (Dauhoo EEA Regulation 8(2) Mauritius [2012] UK 79 (IAC) a [19]).

In short, you still have a chance to apply as unmarried partner if you have lived apart, so long as you can convince the case worker that your time apart was for valid reasons and that your relationship continued over that period.

Hopefully that's helpful