The Secretary of State for the Home Department v Muhammad Asif Saeed Kunwar

An “extended family member” (“EFM”) of an EEA national exercising Treaty rights in the UK (such as a person in a durable relationship) has no right to reside in the UK under the Immigration (EEA) Regulations until he or she is issued with the relevant residence documentation under reg 17(4) of the 2006 Regulations (now reg 18(4) of the 2016 Regulations).

Following Macastena v SSHD[2018] EWCA Civ 1558, it is clear that it is not possible to aggregate time spent in a durable relationship before the grant of a residence document with time spent after a residence document is issued, for the purpose of the calculating residence in accordance with the Regulations.

Once such a document is issued however, then the EFM is “treated as a family member” of the EEA national and may then have a right to reside under the Regulations (reg 7(3)).

Consequently, a person in a “durable relationship” with an EEA national can only be said to be residing in the UK “in accordance with” the Regulations once a residence document is issued. Only periods of residence following the issue of the documentation can, therefore, count towards establishing a ‘permanent right of residence;’ under reg 15 based upon 5 years’ continuous residence “in accordance with” the Regulations.

The scheme of the 2006 and 2016 Regulations in respect of EFMs is consistent with the Citizens’ Directive (Directive 2004/38/EC). The Directive does not confer a right of residence on an individual falling within Art 3.2 including a person in a “durable relationship, duly attested” with an EU national but only imposes an obligation to “facilitate entry and residence” following the undertaking of an “extensive examination of the personal circumstances” of individuals falling within Art 3.2.

The respondent (whom I shall refer to as “the claimant”) is a citizen of Pakistan who was born on 4 April 1981.

On 21 September 2015, he applied for a permanent residence card under the Immigration (EEA) Regulations 2006 (SI 2006/1003 as amended) (“the 2006 Regulations”). That application was refused by the Secretary of State on 4 March 2016.

The claimant appealed to the First-tier Tribunal. In a determination promulgated on 7 March 2018, Judge R E Barrowclough allowed the claimant’s appeal.

The Secretary of State sought, and was granted, permission to appeal to the Upper Tribunal by the First-tier Tribunal (Judge Simpson) on 26 April 2018.

The claimant relied upon his durable relationship with an EEA national, Ms Marlena Opara who is a Polish national. The uncontested evidence, which was accepted by the judge, was that the claimant and Ms Opara began their relationship in September 2006 and started living together in January 2007. They lived together until March 2014 when their relationship broke down and Ms Opara returned to Poland.

The claimant contended that he had resided in the UK in accordance with the 2006 Regulations for a continuous period of five years, in a durable relationship with Ms Opara, between March 2009 and March 2014. The claimant relied on the fact that he had been granted a residence card as an “extended family member” in September 2009 and that prior to that, and at least back to March 2009, he had been in a durable relationship with Ms Opara. Those two periods, when added together, amounted to five years’ continuous lawful residence in accordance with the 2006 Regulations.

Judge Barrowclough accepted that Ms Opara had been exercising Treaty rights during that period. That is no longer in issue and I need say no more about it.

Further, Judge Barrowclough accepted the basis upon which the claimant’s case was put as giving rise to a permanent right of residence based upon the claimant’s relationship, as a durable one, between March 2009 and March 2014. The judge’s reasons are succinctly set out in paragraph 7 of the determination as follows:

It was accepted by Mr Howells, who represented the Secretary of State, that the claimant was resident in the UK in accordance with the Regulations from the date he was issued with a residence card as an extended family member in September 2009 until his relationship broke down in March 2014. That is a period of four years and six months. However, Mr Howells did not accept that the claimant could rely upon his durable relationship prior to the issue of that card so as to ‘bolt on’ a further period between March 2009 and September 2009 in order to establish a period of five years’ continuous residence in accordance with the 2006 Regulations. Mr Howells submitted that, until the Secretary of State exercised his discretion to issue a residence card under reg 17(4), the claimant was not a “family member” as defined in reg 7(3) read with reg 8(5). He could not, therefore, establish for the purposes of reg 15(1)(b) that he was a “family member” of an EEA national residing in the UK in accordance with the 2006 Regulations for a continuous period of five years.

Mr Rashid, who represented the claimant, relied upon the Court of Appeal’s decision in Macastena v SSHD[2018] EWCA Civ 1558. He submitted that, in that case, the court had accepted that an individual could rely upon the period of his durable relationship even prior to the issue of a residence card once a card had been issued. He submitted that the outcome in Macastena, where the individual had not been entitled to rely upon his durable relationship, was dependent upon the fact that in that case no card had ever been issued. Here, the Secretary of State had exercised his discretion to issue a residence card in September 2009. Mr Rashid submitted that, given that the application was made in May 2009, the Secretary of State must have been satisfied that the claimant was in a durable relationship with his partner at least from March 2009. Indeed, the judge had found that as a fact in his decision.

The relevant domestic provisions are found in the 2006 Regulations. These have subsequently been superseded by the Immigration (EEA) Regulations 2016 (SI 2016/1052) which are materially the same as those applicable to this appeal.

The claimant relies upon reg 15(1)(b) as the basis for his permanent right of residence. That provides as follows:

A “family member” of an EEA national is defined in reg 7 of the 2006 Regulations. Regulation 7(1) sets out a number of individuals who will be “treated as the family members” of another person. These include a spouse or civil partner; the direct descendants of an individual or of his spouse or civil partner who are under 21 or who are dependent upon that individual, his spouse or civil partner; and dependent direct relatives in the ascending line of that individual, his spouse or civil partner.

Regulation 7(1)(d) goes on to state a further situation where: “a person who is to be treated as the family member of that other person under paragraph (3)”.

Regulation 7(3) provides as follows:

The claimant does not fall, and this is not contentious, within any of the categories in reg 7(1)(a)–(c) so as to be treated as a “family member” of his partner. His entitlement is said to flow from the fact that he is an “extended family member” as defined in reg 8(5) of the 2006 Regulations which provides as follows:

The judge, of course, accepted that the claimant and his partner were in a durable relationship and, therefore, the claimant falls within reg 8(5). However, unless and until he is issued with a residence card under reg 17(4) of the 2006 Regulations, the claimant is not a “family member” of his partner by virtue of reg 7(3).

This distinction is important for two reasons. First, the 2006 Regulations only confer a right of residence on a “family member” of an EEA national exercising Treaty rights. That is the case in relation to the ‘initial right of residence’ under reg 13(2) and in respect of the ‘extended right of residence’ after three months under reg 14(2).

Secondly, a ‘permanent right of residence’ under reg 15(1)(b) is only acquired by a “family member” of an EEA national who has been residing in the UK in accordance with the 2006 Regulations for a continuous period of five years. Regulation 15(1)(b) provides as follows:

The scheme of the 2006 Regulations is, therefore, clear. Only “family members” as defined in reg 8 have a right of residence and can, therefore, ‘clock up’ a period of five years’ continuous residence under the 2006 Regulations in order to acquire a permanent right of residence under reg 15(1)(b) of the 2006 Regulations.

By contrast, a person who does not fall within the definition of a “family member” in reg 7(1)(a)–(c) but, instead, is an “extended family member” falling within reg 8, and for the purposes of this appeal in particular reg 8(5) because he or she is the partner of an EEA national in a durable relationship, has no right of residence in the UK until issued with a residence card under reg 17(4) which is in the following terms:

Regulation 17(5) goes on to state:

Once the document is issued, and it is a discretionary decision, by virtue of reg 7(3) the “extended family member” is “treated as the family member of the relevant EEA national” for so long as he or she satisfies the condition that makes him or her an “extended family member” under reg 8 – in this case, he remains in a durable relationship with their partner.

Although I was not taken directly to the Citizens’ Directive (Directive 2004/38/EC) (“the Directive”) which the 2006 Regulations seek to give effect to, the distinction between “family members” and “extended family members” is replicated, and derived from, the Directive. The definition of a “family member” found in reg 7 is derived from the definition of ‘family member’ in Art 2.2 of the Directive. The Directive is stated to apply to all Union citizens who move to or reside in a Member State other than that of which they are a national and to their ‘family members’ as defined in Art 2.2 when those “family members” accompany or join them (see Art 3.1). Likewise, the initial right of residence, the right of residence after three months and the acquisition of a permanent right of residence are applicable only to “family members” of EU nationals (see Arts 6.2, 7.2 and 16.2 respectively).

What are termed “extended family members” in the 2006 Regulations are dealt with in the Directive in Art 3.2 which provides as follows:

As will be clear, Art 3.2 covers those “extended family members” as defined in reg 8 of the 2006 Regulations referring to them as “other family members” or, and importantly for the purposes of this appeal, the partner of a Union citizen who has a “durable relationship, duly attested”.

It is clear from the jurisprudence of the Court of Justice that only “family members” as defined in Art 2 of the Directive have a right of residence derived from the EU national. Those “other family members” or individuals in a “durable relationship, duly attested” with the EU national do not, by virtue of the Directive, have a right of residence. In SSHD v Rahman and Others (Case C-83/11) [2013] Imm AR 1, the CJEU concluded that Art 3.2 did not oblige Member States to accord a right of entry or residence to those “other family members” or those in a “durable relationship” with the EU national. Rather, the CJEU recognised that the Directive imposes an obligation to “facilitate entry and residence” following the undertaking of an “extensive examination of the personal circumstances” of the individuals (see also SSHD v Banger [2018] EUECJ C-89/17 (12 July 2018) at [31]). That is to be effected by national legislation, which confers a wide discretion upon the Member States when selecting the criteria but that those criteria must be consistent with the normal meaning of the terms “facilitate” (also Banger, at [38]-[40]).

That scheme precisely mirrors what is contained in the 2006 Regulations. Those Regulations require, when an individual who claims to be an “extended family member” such as the claimant makes an application, that there be “an extensive examination of the personal circumstances” of that individual (see reg 17(5)) in order to determine whether the individual has established they are a “extended family member” and whether it is appropriate to issue a residence card (see reg 17(4)). It is only once the residence card is issued that the 2006 Regulations recognise that an individual who has established that they are an “extended family member” has a right of residence because they are then (but only then) treated as a “family member”. There is nothing, in my judgment, in that scheme which is contrary to the Directive. The Directive does not confer any right of residence upon an “extended family member” but recognises that their right of residence must be facilitated after an “extensive examination” of their personal circumstances. That is exactly what occurred in this case following the application for a residence card relying upon reg 8 of the 2006 Regulations. There is nothing in the Directive which requires a Member State, following that process, to confer retrospectively a right of residence upon the “extended family member”.

The position is, of course, otherwise for an individual who asserts a right of residence as a “family member”, e.g. as the spouse of an EEA national. Both the 2006 Regulations and the Directive confer a right of residence upon a family member of an EEA/EU national who is exercising Treaty rights. That right exists irrespective of whether the “family member” is issued with a residence card. Any residence card is merely evidence of the right of residence already conferred by the 2006 Regulations and Directive.

However, the Directive confers no right of residence upon “other family members” or those in a “durable relationship, duly attested” falling within Art 3.2. Under the 2006 Regulations a right of residence is conditional upon the issue of a residence card under reg 17(4). Consequently, a person in a durable relationship with an EU national will not have a right of residence in the UK until issued with a residence card.

In the case of the claimant, his right of residence, therefore, only arose in September 2009 when he was issued with a residence card. That residence card did not purport to, nor did it, retrospectively grant the claimant a right of residence backdated, on the claimant’s case, at least to March 2009. He could not, therefore, establish that he had resided in the UK in accordance with the 2006 Regulations for a continuous period of five years as a “family member” (which he did not become until September 2009 when the residence card was issued) in order to establish a permanent right of residence under reg (15)(1)(b).

That conclusion is, in my judgment, entirely consistent with the scheme of the Directive. In particular, Art 16.2, using language reflected in reg 15(1)(b) of the 2006 Regulations, only confers a permanent right of residence upon “family members” who have legally resided with the Union citizen in the Member State for a continuous period of five years (although it is not necessary that they actually reside together: PM (EEA – spouse – “residing with”) Turkey [2011] UKUT 89 (IAC)). Of course, a “family member” is defined in Art 2.2 of the Directive and does not include an individual, such as the claimant, who is in a durable relationship.

Mr Rashid, however, sought to counter that interpretation of the 2006 Regulations and the Directive by reliance upon the Court of Appeal’s decision in Macastena. In that case, the claimant sought to assert a “permanent right of residence” based upon, what he claimed was, a period of five years lawful residence in accordance with the Regulations, some of which time he was a spouse of an EEA national and some of which time he had been in a durable relationship with the EEA national. He claimed that he had a permanent right of residence in order to contend that he could only be deported on “serious grounds of public policy or security” (rather than merely on the grounds of public policy, security or public health) under reg 21(3) of the 2006 Regulations.

In Macastena, the claimant had not applied for, nor been issued with, a residence card under reg 17(4) of the 2006 Regulations. He had, however, married the EU national and sought to rely upon a period prior to his marriage, when it was accepted he was in a durable relationship, which, when added to the relevant period of his marriage, amounted to a period of five years’ residence in the UK. The period of time in a durable relationship which he needed to ‘add on’ in order to succeed was only 5 days.

The Court of Appeal rejected the claimant’s reliance upon any period of residence in the UK prior to his marriage when he was in a durable relationship. Longmore LJ (with whom King and Coulson LJJ agreed) rejected the claimant’s contention at [15]–[20] as follows:

At [22]–[24], Longmore LJ dealt with the position under the Citizens Directive and the case of Rahman to which I have already referred as follows:

Mr Rashid relied upon, in effect, the first sentence of Longmore LJ’s judgment at [15] which, he submitted, indicated that, although Mr Macastena could not rely upon his period of residence in a durable relationship prior to his marriage, the position would have been different if he had applied for and received a residence card. He submitted that Longmore LJ accepted that in those circumstances “the time of that durable relationship could count towards an acquisition of a permanent right of residence”. In this case, Mr Rashid submitted that the claimant had been issued with a residence card in September 2009 and, therefore in accordance with the judge’s factual finding that the durable relationship existed at least from March 2009, the claimant had established the necessary five years’ continuous residence.

I do not accept that argument. First, there is nothing in the passage relied upon in Longmore LJ’s judgment to suggest that he was accepting that even a period before the residence card was issued could be taken into account towards the acquisition of a permanent right of residence. Secondly, the substance of Longmore LJ’s reasoning runs counter to Mr Rashid’s submission. The Court of Appeal repeatedly emphasised the distinction drawn in the Directive between the rights of residence conferred upon “family members” and the (lesser) right to ‘facilitate entry and residence’ for, inter alia, those in a durable relationship (at [22]–[23]) together with the reinforcement of that distinction by the CJEU in Rahman (at [24]). Further, Longmore LJ cited with approval at [24] what was said by Richards LJ in the case of Aladeselu (at [65]) that:

In my judgment, the Court of Appeal’s decision in Macastena confirms, and applies, the scheme of the 2006 Regulations and Directive which I have set out above, drawing the distinction between the right of residence of a “family member” and the absence of any right of residence for an “extended family member” until a residence card is issued by the Secretary of State under reg 17(4) of the 2006 Regulations. Only from that point in time do the 2006 Regulations confer upon the “extended family member”, a right of residence because from that point in time they are treated as a “family member” and may, if appropriate, rely upon the rights of residence recognised in reg 13(2) and 14(2). Then, and only then, does the individual begin to acquire a period of lawful residence under the 2006 Regulations which can count towards establishing a “permanent right of residence” on the basis of residing in the UK in accordance with the 2006 Regulations for a continuous period of five years under reg 15(1)(b).

For these reasons, therefore, Judge Barrowclough erred in law in finding that the claimant had established the required period of residence under reg 15(1)(b) of the 2006 Regulations and so was entitled to a permanent residence card.

Consequently, the decision of the First-tier Tribunal to allow the claimant’s appeal involved the making of an error of law. That decision is set aside.

I re-make the decision dismissing the claimant’s appeal under the 2006 Regulations.