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Case Study – The “Un-winnable” case

On 30/03/2022 RMC went to court to represent what was claimed to be an un-winnable case. 

Not due to the lack of supporting evidence . But due to the fact the legal argument we brought was trying to prove that the law itself was unsuitable. 

At the end of the day, the judge gave his verdict, they had won the case. 


Law Background:

When the UK left the EU in 2016, EU citizens has to apply for EU Settlement Status in order to continue to work and live in the UK. As many EU citizens who had been living in the UK had families, this status could be extended to them and they would be able to apply for the same status. For those who had lived in the UK for over 5 years, they were eligible for Settled status, giving them full security and a route to Indefinite leave. For those with under 5 years residency, they would be granted pre-settled status until they had been resident for 5 years. 

The immigration rules define a partner as “the applicant’s spouse, civil partner, fiancé(e), proposed civil partner or a person that has been living together with the applicant for at least two years prior to the date of application.”

A ‘durable partner’ for the EU Settlement Scheme is definite as someone that has lived together in a relationship akin to a marriage or civil partnership for at least two years. The Rules do also allow for the provision of ‘other significant evidence of a durable relationship’.


The Case

Mary, a Nigerian National, who had lived in the UK since September 2019 with her Italian partner and their 2-year-old son, had been refused pre-settled status. She was refused on the grounds of not having the right documentation to prove she was a “durable partner”. Something RMC argued was impossible to obtain due to the current laws and something that is likely to have impacted many families. 

Background

Historically, unmarried partners of EU nationals, what under EU law is called ‘durable partners’, were able to apply and be issued with a Biometric Residence Card to prove their status as family members of EU nationals if they could prove that they were in a ‘durable relationship’. 

Durable partners were included in the protection afforded by the EU Withdrawal Agreement but the definition that was included in the law implementing this Agreement (Appendix EU) required them to have been issued with a Biometric Residence Card under EU law, which was repealed in the UK after December 2020.  

This in practice means that any unmarried partner in the UK without this document cannot apply under the EU Settlement Scheme as it is impossible to obtain this document any longer. The suggested alternative under the law is to return to the country of their nationality for more than 6 months and then apply to re-enter the UK with a family permit, the document available family members joining EU nationals from abroad. 

The key argument

RMC argued that this is an unreasonable ask for a functional family unit and something that goes against the essence of a ‘durable relationship’. Requesting a document that cannot anymore be obtained is in violation of the Withdrawal agreement and requesting the couple to be separated for probably a year was disproportionate. 

Following these arguments, the judge accepted that the laws were in fact not possible to abide by and allowed the appeal of the decision. 

Next steps

The Home Office has applied for  permission to appeal this decision. Should this happen, Mary will have to wait a little longer until she is fully granted her status as this appeal will also need to be heard in court before a decision can again be made. RMC will be there to support her should this be the case and will once again represent her and her case. 

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