Calculating qualifying period to obtain permanent residence for extended family members of EU citizens

The High Tribunal in the case of  Kunwar (EFM – calculating periods of residence) [2019] UKUT 63 (IAC) ruled that a non-European partner who is in a durable relationship with an  EU citizen but not married to him/her cannot start counting five years residency for purposes of permanent leave in absence of residence card. The five years clock runs after the applicant is granted the Residence Permit card. This situation significantly differs from the one where partners are married. They have an automatic right for residence, while relying on the length of the relationship with their sponsor from the European Union and their residence in the UK, regardless of when they received the Residence Permit. Unmarried partners, as well as extended family members, do not have such rights by default and can expect to receive permanent residence only after they have lived five full years on Residence Permit. In other words, the countdown towards their residency for extended family members starts from the time they are granted residence card not length of residency with the EU partner prior to grant of residence card.

In the aforementioned case, Mr. Kunwar, a citizen of Pakistan, claimed that he had the right to obtain a permanent residence permit, since he lived in the UK for five years as a “durable partner” of a Polish citizen. “Durable partner” is a term used in the EU free movement law and refers to those who have a serious long-term relationship with EU citizens, but who are not married.

Mr. Kunwar and his Polish partner lived together from January 2007 to March 2014. Thereafter, the relationship ended. In September 2009, Mr. Kunwar received the Residence Permit biometric card as an extended family member of an EU citizen. In September 2015, he filed an application for permanent residence, where he relied on his five-year period starting from March 2009 to March 2014.  From March 2009 till September 2009 he lived with his Polish partner, but did not have Residence Permit. His position was that he lived with his European partner for a full five years and the Home Office recognized their relationship. Nevertheless, on appeal to  Upper Tribunal, the Immigration Judge agreed with the position of the Home Office that extended family members (including unmarried partners) can calculate their five years toward permanent residence only from the time they receive the Residence Permit and not their length of residency with EU nationals.