EUSS Decision for non-EEA spouse and previously durable partner

[Molly42]

Hello,

I am new to the form but was hoping to get your experienced opinion. My non-EEA spouse received a Pre-Settled Status under EUSS with the following justification why he could not meet the requirements for Settled Status:

"Although you are the family member of a relevant EEA citizen and you were in the UK
between 2010 and 2020, you have not been a family member of a
relevant EEA citizen for a continuous qualifying period of five years because your
continuous qualifying period began on XX-XXX-2017 when you married the EEA citizen. A
durable relationship cannot be accepted under this scheme unless you have previously
been issued a residence card under the EEA Regulations based on a durable
relationship.
Therefore, you do not meet the requirements for settled status on the basis of a
continuous qualifying period of five years."

For context:
* I hold EU Settled Status and have been living in a durable relationship in the UK with my (now) spouse since 2010.
* We were both students, me QP and him on Tier 4 visa.
* We married in 2017 and later that year he obtained EEA FM Residence Card.
* In his application, we evidenced our unmarried relationship covering 2010-2017, and evidence of marriage covering 2017-2020.

Our assumption (perhaps flawed) was that the qualifying period counter started some time before 2015 (i.e. 2020-5). Nowhere did we see the requirement that he should have held "a residence card under the EEA Regulations based on a durable relationship".

Is there a ground for appeal?

Separately, is there a viable option for us to apply for an EEA EFM RC on the basis of past durable relationship? and then reapply to EUSS?

[Zerubbabel]

Hello

Un-married partners don't exist for the purpose of immigration under EEA route unless they apply and obtain an EEA EFM card.

If you were married in 2015 then he applied for an EEA FM in 2017, that would've been fine. He would have had a 5-year qualifying period provided you held an comprehensive sickness insurance during the time you were student.

However, he was probably under a Tier 4 visa until 2017 when you married. Therefore, he accumulated 3-year qualifying period so far. You cannot go back in time and somehow make the Tier 4 period count as EEA because you were together.

[Molly42]

Thank you, Zerubbabel, for you insightful input.

It seems that the HO decision has been correct. Now, onto our second question: is that even a viable option? Can a person who held an EEA FM RC from 2017, retrospectively apply for an EEA EFM RC to confirm the relationship from, say, 2015?

Just to clarify additionally the context: I had graduated by 2015 and was in full-time employment ever since. I also held comprehensive sickness insurance as a student.

Many thanks,

[CR001]

Can a person who held an EEA FM RC from 2017, retrospectively apply for an EEA EFM RC to confirm the relationship from, say, 2015?

No. That ship has sailed and was superceded by your marriage in 2017, which is now the relevant effective date for the EEA FP RC and pre settled status.

It would have been prudent at that time in 2015 to apply for an EEA EFM residence card to confirm the durable partner status under the EEA regulations.

[Molly42]

Thank you as well, CR001.

After discussing on this thread and also reading related conversation here:
https://www.immigrationboards.com/eea-r ... 04769.html I am content with this consistent, alas unfavourable decision.

We didn't even know about the existence of EEA Residence Cards back in 2015. Blissful ignorance of pre-Brexit Referendum days

[kamoe]

is there a viable option for us to apply for an EEA EFM RC on the basis of past durable relationship?

I think it is important to highlight a point that is not obvious here, only on other posts, which I believe you have read and understood since you are already satisfied with our answers. So this is really for anyone still scratching their heads with the repercussions of your question:

Another reason the above is not viable is because, even if it was possible, it would actually steal time from you, not give you more.

This is because the EEA EFM RC sets the clock of the start of relationship to the date of issue of the card. So even if an unmarried durable partner meets the requirements on date X, they are only recognized as family member when the outcome of the application is decided on date Y. Between date X and Y can pass 3, 5, 6, and even 7 months. Those are months where the unmarried partner is NOT yet considered a family member, even if they indeed meet the criteria, since they have not yet had the seal of approval from the HO.

You can see then how trying to have a relationship recognized retroactively this way will serve no purpose, as even if the caseworker agrees today that someone were indeed a durable partner 5 years ago, only today they see the evidence, only today they can give the seal of approval; and only today will be the date the unmarried partner begins to be recognized as a family member. Not very useful when you already have a marriage date dating back from 3 years ago, is it?