The EU Settlement Scheme (‘EUSS’) is for EEA nationals, and their qualifying family members, who are or will be living in the UK once the UK has left the EU in the process known as Brexit. Those who have had a previous relationship with an EU national and resided in the UK for a period of time may be able to ‘retain the rights of residence’ and apply for either settled status (for five years or more continuous residence in the UK) or pre-settled status (for less than five years residence).
Those who may have retained the right of residence by way of a relationship with an EU national include the children and partners of deceased EU nationals and those who were married to EU nationals and the marriage has now been terminated.
There are specific requirements that each group must meet. Carter Thomas associate, Nick Gore, examines the requirements that apply to former partners.
Former partner requirements
Under the definitions section of Appendix EU to the Immigration Rules (HC395, as amended), the requirement to meet the retained rights of residence classification includes:
(d) the applicant (“A”) is an EEA citizen or non-EEA citizen who:
(i) ceased to be a family member of a relevant EEA citizen (or a qualifying British citizen) on the termination of the marriage or civil partnership of A; for the purposes of this provision, where, after the initiation of the proceedings for that termination, that relevant EEA citizen ceased to be a relevant EEA citizen (or that qualifying British citizen ceased to be a qualifying British citizen), they will be deemed to have remained a relevant EEA citizen (or, as the case may be, a qualifying British citizen) until that termination; and
(ii) was resident in the UK at the date of the termination; and
(iii) one of the following applies:
(aa) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership, the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had been resident in the UK for a continuous qualifying period of at least one year during its duration; or
(bb) A has custody of a child of the relevant EEA citizen (or the qualifying British citizen); or
(cc) A has the right of access to a child of the relevant EEA citizen (or the qualifying British citizen), where the child is under the age of 18 years and where a court has ordered that such access must take place in the UK; or
(dd) the continued right of residence in the UK of A is warranted by particularly difficult circumstances, such as where A or another family member has been a victim of domestic violence or abuse whilst the marriage or civil partnership was subsisting
Further information is also provided under the Caseworker Guidance which is the Home Office’s interpretation of the above requirements.
Termination of marriage/civil partnership
Under EU law and under the EUSS an individual is still considered married until the decree absolute is issued. Applicants may consider applying as the family member of an EU national until this document is issued.
For retained rights of residence, the requirement is ‘prior to the initiation of the proceedings for the termination of the marriage or civil partnership’ the marriage/partnership must have lasted three years and the applicant and EU national must have been resident in the UK for at least one continuous year.
There may be complications for those who commence proceedings for divorce and wish to use the time between the decree nisi and decree absolute to meet these requirements. If the applicant and their partner have not been in a marriage or civil partnership for three years before the proceedings begin they may not meet paragraph (d)(iii)(aa) above. Applicants may instead have to rely on the remaining provisions of the definition.
Documentary evidence
A former partner applying under this route should ensure that they have good documentary evidence that they meet the requirements. They should collate, for example, copies of their marriage certificate, divorce documents, custody agreements (if relevant), court orders and documents which evidence their residence at the date of the termination of the marriage.
Some of the most difficult evidence to obtain may be documents that demonstrate that the EU national and the applicant had a genuine marriage for the three year period and documents that demonstrate they have been resident in the UK for at least one year. Information regarding the types of documents to provide is available here.
If documents exist but have been withheld by the EU national, Home Office caseworkers should take into account the sensitivities of the case. Caseworkers can also accept alternative evidence of the identity and nationality of the EU national where an appropriate document such as passport or identity card cannot be obtained for circumstances beyond the applicant’s control or due to compelling practical or compassionate reasons.
There are some specific provisions for those who have been victims of domestic violence or abuse, including providing supporting evidence of their circumstances from a third party, such as the police or social services.
A list of organisations that support vulnerable and at risk applicants is available here.
Procedure
Non-EU nationals applying on the basis of their retained rights may be able to use the ID document scanning locations or the EUSS app if they have a biometric card. If they do not, applicants will have to attend a biometric appointment and send their passport to the Home Office to prove their identity. In some cases the passports of applicants have not been requested by the Home Office. Supporting documents can be uploaded online as part of the application.
As this system is still relatively new we have encountered circumstances of Home Office caseworkers struggling to understand the EUSS requirements. For instance, in one case we have dealt with recently, further evidence of the former partner’s residence in the UK was requested, despite having already provided evidence of the three year genuine marriage and one year’s residence in the UK.
We have found that generally, in relation to applications under the EUSS, caseworkers appear to be willing to communicate and consider representations. In the case mentioned above, when further unnecessary information was requested, we sent a letter to the Home Office setting out the requirements of the scheme, and how the applicant had met these requirements. The application was then approved.
Non-EU nationals will be able to prove their settled or pre-settled status via a biometric card. A new one will not be issued if they already have one. The Home Office’s position is that applicants who already have an EU issued biometric card should have this ‘linked’ via online systems to their new status and will not receive a new one. They can demonstrate their settled or pre-settled status by logging into the online system.
This is confusing as the biometric card will set out one type of status and link to another type of status (under the EUSS). In addition, the EU biometric cards will have an expiry date on them, for instance if a non-EU national applied for a Residence Card in 2015 this will expire in 2020. If they applied for settled status this would be linked to their current biometric card and they may have to request a new, EUSS, biometric card in 2020. We will keep our website up to date on this point.
How we can help
We are experienced in preparing successful EUSS settlement and pre-settlement applications for complex retained rights of residence cases.
If you need further information about the EUSS route, please contact us.
