Introduction

Only certain EU Citizens and UK Nationals fall within the scope of the UK’s EU Withdrawal Agreement, see my post The Personal Scope of the UK’s EU Withdrawal Agreement: The Principal Beneficiaries of Citizens’ Rights. Those that do, bring certain family members within scope. Such family members are divided into two classes: (i) those who rights arise automatically by operation of law (direct family members; e.g. parents, children), and (ii) those other family members who have right to apply for and secure a decision on their right to entry and residence (indirect family members; e.g. aunts, nephews, unmarried partners, etc.). This post is solely concerned with indirect family members.

For a discussion of direct family members, see my post Family Reunion Rights for EU Citizens and UK Nationals under the UK’s EU Withdrawal Agreement: Direct Family Members.

Which Indirect Family Members fall within the Personal Scope of the Withdrawal Agreement?

First Class

The first class of indirect family members who fall within the personal scope of the Withdrawal Agreement extend to:

• family members (of any nationality) who are not direct family members (see above) and who, in the country from which they have come, are (i) dependants or members of the household of the EU Citizen (in the UK) or UK National (in an EU member state) having the primary right of residence, or (ii) where serious health grounds strictly require the personal care of the family member by the EU Citizen (in the UK) or UK National (in an EU member state)
• the (unmarried) partner with whom the EU Citizen (in the UK) or UK National (in an EU member state) has a durable relationship, duly attested

Such persons whose residence was facilitated by the host state (UK or EU member state, as the case may be) in accordance with its national legislation before the end of the Brexit transition period (31 December 2020) and in accordance with the free movement Directive (2004/38/EC), retain their right of residence in the host State provided that they continue to reside in the host state thereafter.

This class of persons concerns those have been granted entry or residence. But bear in mind the following matters that will have been relevant to such grant. First, there is no limit on who may be a family member, so aunts, uncles, cousins, nephews, nieces, etc. are all potentially within scope. Second, in the country from which they come, there must have been prior dependency (what constitutes ‘dependency’ in EU law is a topic in itself) on, or household membership of, the principal EU Citizen (in the UK) or UK National (in an EU member state); or there must have been serious health grounds that mean the family member strictly required the principal EU Citizen’s or UK National’s (as the case may be) personal care (an exacting test) . Third, residence in the host state has to have been granted before the end of the Brexit transition period (31 December 2020) in order for the right of residence to be retained. Fourth, there must be continued residence thereafter.

Second Class

The second class of indirect family members who fall within the personal scope of the Withdrawal Agreement extend to:

• family members (of any nationality) who are not direct family members (see above) and who, in the country from which they have come, are (i) dependants or members of the household of the EU Citizen (in the UK) or UK National (in an EU member state) having the primary right of residence, or (ii) where serious health grounds strictly require the personal care of the family member by the EU Citizen (in the UK) or UK National (in an EU member state)
• the (unmarried) partner with whom the EU Citizen (in the UK) or UK National (in an EU member state) has a durable relationship, duly attested

who have applied for facilitation of entry or residence before the end of the Brexit transition period (31 December 2020), and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.

In substance, the second class includes the same range of persons as the first class; the difference being that their applications await determination at the end of the Brexit transition period.

Bear in mind the following matters. First, there is no limit on who may be a family member, so aunts, uncles, cousins, nephews, nieces, etc. are all potentially within scope. Second, in the country from which they come, there must be prior dependency (what constitutes ‘dependency’ in EU law is a topic in itself) on, or household membership of, the principal EU Citizen (in the UK) or UK National (in an EU member state); or there must be serious health grounds that mean the family member strictly required the principal EU Citizen’s or UK National’s (as the case may be) personal care (an exacting test) . Third, the application for entry and residence in the host state has to have been made before the end of the Brexit transition period (31 December 2020) in order for the right to subsist. Fourth, there must be continued residence thereafter. Fifth, the principal EU Citizen (in the UK) or UK National (in an EU member state) must be exercising a right of residence (protected by the Withdrawal Agreement).

In determining the application, the host State is required to undertake an extensive examination of the personal circumstances of the persons concerned and is required to justify any denial of entry or residence.

Third Class

The third class of indirect family members who fall within the personal scope of the Withdrawal Agreement extends to:

• the (unmarried) partner with whom the EU Citizen (in the UK) or the UK National (in an EU member state) has a durable relationship, duly attested

who applies after the end of the Brexit transition period (31 December 2020).

In accordance with its national legislation, the host state must facilitate entry and residence for the partner with whom a member of a prescribed class of persons (see below) has such a duly attested durable relationship, where that partner resided outside the host State before the end of the Brexit transition period, provided that the relationship was durable before the end of the transition period and continues at the time the partner seeks residence. A self-employed Italian journalist working in the UK could found a right of entry and residence in the UK for her Italian partner resident in Italy who makes an application to join her in the UK in 2021, provided that their relationship was durable before 2021. Similarly, a German banker working in London, could apply for his Ukrainian partner to join him.

The classes of persons with whom the unmarried partner may have a durable relationship are:

• EU Citizens resident in the UK
• UK Nationals resident in an EU member state
• EU Citizen Frontier Workers working in the UK
• UK National Frontier Workers working in an EU member state

For more detail on these classes, see my post the Personal Scope of the UK’s EU Withdrawal Agreement: The Principal Beneficiaries of Citizens’ Rights.

As regard this third class of persons, the right conferred on them as unmarried partner is without prejudice to any right to residence which they may have in their own right.

In determining the application, the host state is required to undertake an extensive examination of the personal circumstances of the persons concerned and is required to justify any denial of entry or residence.

So long as the relationship existed before the end of the Brexit transition period (31 December 2020), and continues to subsist thereafter, the unmarried partner may apply for entry or residence after the end of the Brexit transition period.