If a third-country citizen marries an EEA national in the UK with pre-settled status in 2022. What visa will they apply for. And what about retained rights after 3 years rule? Will this policy continue for new couples after 2022 or not?
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1 Answer
Under the terms of the Withdrawal Agreement only relationships established before the end of the transition period open special rights for members of the family of an EEA citizen. However, marriage is not the only type of relationship that's relevant so if the couple had formed earlier, the spouse might still qualify for an easier visa on the basis of this “durable relationship”.
All this is detailed in article 10:
Personal scope
- Without prejudice to Title III, this Part shall apply to the following persons:
(a) Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter;
[…]
(e) family members of the persons referred to in points (a) to (d), provided that they fulfil one of the following conditions:
(i) they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter;
(ii) they were directly related to a person referred to in points (a) to (d) and resided outside the host State before the end of the transition period, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph;
[…]
- Without prejudice to any right to residence which the persons concerned may have in their own right, the host State shall, in accordance with its national legislation and in accordance with point (b) of Article 3(2) of Directive 2004/38/EC, facilitate entry and residence for the partner with whom the person referred to in points (a) to (d) of paragraph 1 of this Article has a durable relationship, duly attested, where that partner resided outside the host State before the end of the transition period, provided that the relationship was durable before the end of the transition period and continues at the time the partner seeks residence under this Part.
Regarding marriage, note that tarticle 10(1)(e)(ii) reads “they were related”, i.e. the marriage must have existed before Brexit. It's only in that case that EU freedom of movement rights can cover a spouse who wasn't already present in the UK, which means someone marrying in 2022 wouldn't be covered by this provision.
The same logic applies to point (4): Only a relationship that qualified as durable before the end of the transition period can be invoked. It could however be useful if the two spouses were already in a relationship long before marrying. On the other hand, if their relationship started after Brexit or even shortly before, the only option left would be the regular UK immigration rules.
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1If the relationship would have qualified as a "durable relationship" on or before the end of the transition period, the couple ought to be able to apply on that basis. It wouldn't make sense for the marriage to reduce the rights derived from the relationship: gov.uk/settled-status-eu-citizens-families/eligibility. Also, there are some people for whom the June 30 deadline does not apply, though it doesn't seem that any of these cases is likely to apply here: gov.uk/settled-status-eu-citizens-families/…– phoogAug 7, 2021 at 16:07
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@phoog That's true, it's actually covered in the same article (point 4 further down) but I discounted it because I was focusing on the fact that the relationship described in the question (the marriage) was established after the end of the transition period. You're obviously absolutely right that someone marrying in 2022 may very well have been in a durable relationship for some time before that. I will rephrase the answer.– RelaxedAug 7, 2021 at 16:26