The new EU Settlement Scheme will provide a ‘straightforward and user-friendly means for resident EEA and Swiss citizens and their family members to remain here permanently’, according to Caroline Nokes, Minister for Immigration.
Unless, it seems, you are a non-EU unmarried partner of an EU citizen (or ‘durable partner’, in Home Office parlance), or you are some other kind of ‘extended family members’, for example a brother, sister, aunt, uncle, cousin, nephew etc. These people must first apply for residence documentation under the ‘old system’, before being able to register under the new Scheme.
Furthermore, in a no-deal Brexit, those without such residence documentation are left high and dry; simply ineligible to register under the new Scheme and left in the position of having no lawful status in the UK. Given the ongoing uncertainty around Brexit, unmarried partners, and other extended family members, should apply for documentation under the old system, without delay.
Extended family members
What I refer to as the ‘old system’ is in fact the ongoing system of rules in place under the EEA Regulations. The EEA Regulations have a clear distinction between how ‘family members’ (i.e. spouses, children, or dependent parents) and ‘extended family members’ should be treated, and this distinction has been maintained under the new Scheme.
Under the Scheme, non-EU close family members, such as spouses, can register under the Scheme, provided the marriage took place by the ‘specified date’. The specified date is either 31 December 2020, if a deal is agreed, or by whenever the UK exits leaves the UK without a deal. Close family members proceed directly to registration under the Scheme.
Unmarried partners and other ‘extended family members’, however, cannot register under the Scheme without first applying for a ‘relevant document’. A relevant document includes a family permit, residence card, or permanent residence card issued under the EEA Regulations.
Extended family members are therefore in the strange position of having to make two applications. The Home Office’s view is that, and for reasons which are not entirely clear, you have to be recognised as an unmarried partner (or recognised as any other extended family member) under the EEA Regulations, before getting access to the Scheme.
It is not quite clear why the Home Office cannot undertake the assessment of the durable partnership at the point an individual applies to the new Scheme. Whatever the reason, the result is that there is now a two stage process for unmarried partners and other extended family members looking to secure their status in the UK: apply under the EEA Regulations for a residence card/family permit etc, and then register under the Scheme.
How does Brexit affect this?
If the UK leaves with a deal then unmarried partners will be able to apply for a residence card/permanent residence card/family permit up until 31 December 2020. And then, armed with your ‘relevant document’, you would then have until 30 June 2021 to register under the Scheme.
However, if the UK leaves without a deal then unmarried partners and other extended family members will be unable to apply for a relevant document from the point of ‘exit day’. Thus, those who fail to get a residence card/permanent residence card/family permit by exit day will have their rights extinguished.
Furthermore, in the above no-deal scenario, it will be no remedy for an unmarried partner simply to get married. This is because the marriage would need to have taken place prior to exit day.
So what to do now?
Unmarried partners and other extended family members would be well advised to apply for the appropriate relevant document without delay. The cost is only £65. Once issued with a relevant document then you can register on the Scheme. Click here to find out more about our immigration legal services.
Alternatively, an unmarried partner can decide to get married and go straight to registration on the Scheme. However, in case of a no-deal Brexit, just make sure the marriage takes place before exit day!
From one of the UK’s most read legal blogs.