What rights do unmarried partners of EEA nationals have in post-Brexit Britain?

The immigration tribunal has recently ruled on this point, and it is not good news for those who are still hoping to obtain leave to remain in the UK with their partner.

In the recent Upper Tribunal case of Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC), the Upper Tribunal found against the appeal of Mr Celik and held that a person in a durable relationship in the United Kingdom with an EEA citizen has no substantive rights under the EU Withdrawal Agreement, unless the person’s entry and residence were being facilitated prior to 31 December 2020 (the end of the ‘transition period’ following the UK’s withdrawal from the European Union).

By ‘facilitated’, the Tribunal meant that the relevant partner – in this case Mr Celik – had obtained a residence document in the UK on the basis of his or her durable relationship with an EEA national.

Prior to Brexit, couples who were unmarried had to apply for a residence document in order to regulate their status in the UK as the extended family member of an EEA citizen. Such a document was issued in terms of the Immigration (EEA) Regulations 2016.

An alternative option was to marry prior to the same date, as the requirement to obtain a residence document did not apply to spouses or those in a civil partnership.

What the Upper Tribunal has now confirmed is that if a person who was in a relationship with an EEA national living in the UK before Brexit did not have the relevant residence document, they cannot now benefit from the rights bestowed on spouses or civil partners by the Withdrawal Agreement. In practice, this means that the relevant partner falls under the terms of the (stricter, more expensive) domestic Immigration Rules for the purposes of regulating their right to remain in the UK.

Mr Celik, a Turkish national who is in a relationship with a Romanian woman in the UK, argued that this was unfair and disproportionate; the Upper Tribunal disagreed. The requirement to have obtained a relevant residence document prior to Brexit remains and it is now too late for someone to get one where they didn’t do so before.

A particular issue which is now arising, and one which could not have been foreseen by the UK or the EU in the drafting of the Withdrawal Agreement, is the Covid-19 pandemic and the unavoidable impact it has had on families’ plans as the world navigated a series of lockdowns.

What if a person did not apply for a residency document prior to Brexit because they had planned to marry instead, knowing that marrying before Brexit would negate the requirement for the residency document? Organisations such as the Immigration Law Practitioners’ Association and Here For Good, made public calls for the Home Office to offer a concession allowing those who wanted to marry but couldn’t because of the pandemic. The Minister of Immigration declined to make any allowances and indeed the Upper Tribunal in the Celik case so noted, decided he was entitled to do so.

Although other concessions have been made under the EU Settlement Scheme to allow those with Pre-Settled or Settled Status to maintain their rights in the UK despite longer-than-permitted absences during the pandemic, with the Home Office’s guidance having been updated to describe the circumstances in which concessions can be made to applicants who were affected by the Covid-19 pandemic, these concessions are of no assistance to those in Mr Celik’s position. That is: concessions are made to protect those already falling under the EU Settlement Scheme but there is no concession to bring a person within the scope of the EU Settlement Scheme on a discretionary basis.

Whether Mr Celik decides to attempt to appeal his case to a higher court remains to be seen; as does the outcome if he does proceed. In due course, we may also see challenges to a refusal from the Home office being raised in the First-tier Tribunal where a durable partner argues that they were unable to obtain the relevant residency document before 31 December 2020 as a result of lockdown. Such challenges will be highly fact-dependent but, following the path now set down by the Upper Tribunal, we may be witnessing the tightening of the reigns on the previously permissive EU Settlement Scheme.

If you would like to discuss your circumstances, please contact our team.

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