Help - stay in UK after end of unmarried partnership?

[deedays]

Help required – options to stay in the UK after end of unmarried partnership

Hello, I am seeking advice on behalf of my ex-partner who wishes to remain living in the UK (Northern Ireland) now that our relationship has ended.

He is Australian and has been in the UK since April 2006 - 9 years

He currently has an EEA2 Family permit (unmarried partner) partner to me, an EEA national (IRISH) exercising Treaty Rights in the UK (I have duel Irish AND British citizenship).
This was granted Dec 2011 - valid until Dec 2016 (5 years validity)

Previous visa information;

2 year WHV - Working Holiday Visa - April 2007 – April 2009

During this time we lived together and then applied for FLR(M)
Because of changes in immigration rules he could not switch from WHV to FLR(M) within the UK therefore we had to go to Australia where we applied via the British Consulate there, waited and returned to the UK when it was granted in October 2009

2 year FLR(M) October 2009 – October 2011

After this we took the EEA route and permit was granted Dec 2011

April 2017 would mark 10 years living in the UK for him (minus the 6 months in Australia to apply for a new UK visa) However his Family permit is due to expire in December 2016 and in fact as we are no longer together he does not meet the requirement for it to be valid any longer.

He really wants to stay in the UK and I am trying to help him apply in his own right.
He has worked and lived in Northern Ireland for most of his 20's and calls it home.

Obviously he does not yet meet the 10 year ILR criteria But could he apply for some type of FLR – Further Leave to Remain until he can apply for ILR?

Maybe FLR (FP) or FLR(O) would it be possible to change form EEA2 Permit to FLR?
Or can anyone advise on what options he may have?

I have read about a Retained right of residence EEA permit but it seems to apply only to those who were married not unmarried couples whose relationship has ended.

He has documentation covering all his time in the UK - HMRC tax documents, payslips, tenancy agreements, bills etc.

Any help would be greatly appreciated. Thank you.

[noajthan]

Sadly no options under EU route for EFM once relationship has ended. ROR is not possible for EFMs.

(Not clear why you didn't follow EU route earlier & so potentially acquire PR for partner in that way).

[CR001]

One has to ask why your partner did not apply for ILR in October 2009 after two years on FLR(M)?

[deedays]

Thank you.

In hindsight and looking back I can see that we probably should have stuck to the one route of applying though UK or EU law in order for him to get permenant residency quicker, however we were not aware of the EU route until near the end of the FLR(M) as we could do either because of my duel British & Irish nationality.

Plus to be honest I didn't think about what would happen if we broke up (or if he would want to stay in the UK in this instance).

The EU route sounded simpler plus we followed this information;

If you are a national of a country from outside the European Economic Area (EEA) and your partner is an EEA national exercising Treaty Rights in the UK, (me based on my Irish nationality) you should not be applying on form SET(M). As a family member of an EEA national, you should apply for a residence card or permanent residence under EEA Regulations on form EEA2 or EEA4 depending on your circumstances.

I thought there may be some sort of way he could apply in his own right to the home office taking in his circumstances and his long residence in the UK?

[CR001]

No, there is no way unless your partner (ex) qualifies for a Tier 2 General.

Should have applied for ILR in 2011 and it would have been no issue with the break up now.

The only other alternative is to try to reconcile till your partner (ex) can apply for permanent residence in December 2016.

[deedays]

Thank you CR001.

Oh dear

So if we were together until December 2016 he would he then be able to apply for permanent residence in his own right by applying for EEA4 based on his 5 years as an Extended Family Member - is that correct?

Would we have to be living together for the 5 years?

[noajthan]

Thank you CR001.

Oh dear

So if we were together until December 2016 he would he then be able to apply for permanent residence in his own right by applying for EEA4 based on his 5 years as an Extended Family Member - is that correct?

Would we have to be living together for the 5 years?

Yes partner could shoot for confirmation of PR, assuming sponsor (you) has been exercising treaty rights & any/all absences (both parties) within prescribed limits.

EU law does not prescribe co-habitation but HO caseworkers (with rules based on UK regs imposed on the cleaner, purer EU law) may do so.

So living together is not mandatory for any/all of 5 years.

Obviously it is easier to demonstrate joint venture if living together too.

Expect searching questions, clinical inspection and have a Plan B in back pocket in case of refusal.

[deedays]

Thank you CR001.

Oh dear

So if we were together until December 2016 he would he then be able to apply for permanent residence in his own right by applying for EEA4 based on his 5 years as an Extended Family Member - is that correct?

Would we have to be living together for the 5 years?

Yes partner could shoot for confirmation of PR, assuming sponsor (you) has been exercising treaty rights & any/all absences (both parties) within prescribed limits.

EU law does not prescribe co-habitation but HO caseworkers (with rules based on UK regs imposed on the cleaner, purer EU law) may do so.

So living together is not mandatory for any/all of 5 years.

Obviously it is easier to demonstrate joint venture if living together too.

Expect searching questions, clinical inspection and have a Plan B in back pocket in case of refusal.

Thank you so much noajthan.

It seems it was a mistake not to apply for ILR back in 2011 after the FLR(M).

Unfortunately I do not think I will be able to comply with the EEA4 PR application as the relationship has permanently ended and I have recently moved to a different city for a new job – I am still exercising my rights by working in the UK and would be able to provide proof up to a point of living together but not going forward.

It is a shame that he has lived in the UK for 9 years now but cannot apply in his own right (I can now see that he could have had PR if we went the other route but we cannot change that now).

Upon the end of the relationship I thought he may go back to Australia but he is insistent he wants to remain living in the UK – It makes me feel bad but what can I do

Thank you.

[Wanderer]

Are dual UK/Irish citizens considered to be exercising treating rights in UK/Ireland anymore?

[deedays]

Are dual UK/Irish citizens considered to be exercising treating rights in UK/Ireland anymore?

Hi Wanderer,

I do believe I read about changes in these rules to stop what the UKBA perceived as a loophole -

Dual nationals in Northern Ireland were entitled to claim to be EEA nationals (IRISH) exercising their EEA treaty rights by living and working in the UK - even if they had never left Northern Ireland, allowing Spouses/Family members to move to Northern Ireland under EU Regs rather than the more restrictive and expensive UK immigration rules.

I will have to check this out. I fit into that scenario exactly - have always lived in Northern Ireland and in 2011 when we applied under EEA Regs it was granted before the rules changes.

I wonder then if this is no longer a possibility what is to happen after the end of the 5 year permit for those who were granted it before the change in rules - how would they now apply for continuing leave to remain?