The Court of Appeal has answered in the negative the question whether a person in a durable relationship with an EEA national holding permanent residence can add time from that relationship to subsequent time as a spouse to satisfy the requirement of five years’ continuous lawful residence before the non-EEA national can himself acquire a permanent right of residence. According to Longmore, King and Coulson LJJ unless a residence card as an “extended family member” (EFM) is issued under the Immigration (European Economic Area) Regulations 2006, the aggregation of the two timeframes is not permissible. The point is important because the protection of permanent residence under the Citizens’ Directive (2004/38/EC) only allows deportation of criminally behaved EU nationals and their family members “on serious grounds of public policy or security” rather than “grounds of public policy or security”. An unlawful entrant, Selim Macastena arrived in the UK from Kosovo in July 2005. He met Ms L, a lawfully resident and employed Polish national. After getting engaged, they got married in Kosovo in August 2008. Macastena received an EEA family permit and was subsequently granted a five year residence card as a family member in September 2009. He and L had divorced and he received a new residence card as an individual who retained a right of residence. In July 2013 he was convicted of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861.
He was sentenced to 24 months’ imprisonment. His deportation was sought but the FTT allowed his appeal, despite the fact that together with his brother he attacked a motorist with a saw. The Upper Tribunal dismissed the Home Office’s appeal but Longmore LJ allowed the further appeal despite the fact that Macastena was only five days short of the requisite timeframe of five years to qualify as a family member with a right of permanent residence under regulation 15(1) of the applicable 2006 Regulations. However, he sought to bridge this gap with his previous residence as an EFM by arguing that he was in a durable relationship with L within the meaning of that term under regulation 8(5) of the 2006 Regulations and that, accordingly, he possessed – or ought to be treated as if he possessed – a permanent right of residence. Under regulation 8(1) an EFM includes a person who satisfies the conditions in regulation 8(5) which specifies “if a person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.” Time spent in a durable relationship cannot be automatically counted as time spent as a spouse.
The Government’s Appeal
Principally the Home Office submitted that Macastena’s alleged period as an EFM in a durable relationship was not lawful residence because the executive had not been asked to exercise his discretion to issue a residence card pursuant to regulation 17(4). The Home Office said it could only determine any application while Macastena was still in a durable relationship, not at some later date.
The Home Office was aggrieved that UTJ Coker had wrongly decided that the executive had implicitly exercised his discretion adversely to Macastena, let alone to decide that he had exercised that discretion on the wrong principles, let alone that the Upper Tribunal was entitled to exercise discretion itself in favour of Macastena. Similarly, if the right interpretation of the FTT judgment was that Judge Clark had exercised a discretion, the FTT was not entitled to do so.
Finally, if the tribunal had been entitled to exercise its own discretion, that discretion was wrongly exercised because neither tribunal “undertook an extensive examination of the personal circumstances of the applicant” as required by regulation 17(5).
The government’s appeal was successful on all grounds.
The Court of Appeal
Allowing the appeal, Longmore LJ decided to remit the case to the Upper Tribunal so that consideration can be exclusively provided to, first, Macastena’s rights under article 8 of the ECHR outside the Immigration Rules and, second, to his point that since he missed five years’ continuous residence by five days only, an application of the de minimis non curat lex principle should ensure that he qualified for the more stringent requirement of “serious grounds of public policy” before he can be deported. The court disposed of the issues in the following way.
(i) Durable Relationship
Longmore LJ took the view that if Macastena had applied for a residence card as an EFM, any time spent in a durable relationship might well have counted towards acquiring permanent residence, in the same way as time spent with a retained right of residence after his divorce. Notably, however, he had not made any such application. Prior to his marriage he was just an unlawful entrant who remained illegally.
His lawyers conveyed his cohabitation with L to the executive but nothing was said about a residence card as an EFM and instead a Visa Disclaimer form was requested and granted with a view to getting married in Kosovo. That led to the grant of an EEA family permit and then a residence card as a family member (spouse) of an EEA national. Yet Macastena stubbornly insisted that the Home Office knew of his durable relationship and had never disputed that it existed lengthily prior to his marriage. He submitted that that alone sufficed for that durable relationship to be aggregated to his time as a spouse for the acquisition of permanent residence. Roundly rejecting the argument, Longmore LJ held:
17. That cannot be right. An EFM can only be issued with a residence card on the basis of his durable relationship with an EEA national if the Secretary of State has undertaken “an extensive examination of the personal circumstances of the applicant”. That has never happened and can only happen after an application for a residence card is made. Merely notifying the Secretary of State that one is in a durable relationship is nowhere near enough either to constitute such extensive examination or to require such examination to be undertaken.
Thus FTTJ Clark erred in thinking that time spent in a durable relationship as an EFM could simply be added to count as time spent as a spouse if the FTT itself was satisfied that there had been a durable relationship before the marriage. CS (Brazil)  EWCA Civ 480 confirmed the result. It concerned regulations 8(5) and 17(4) of the 2006 regulations and the corresponding provisions of the Directive.
Foreign criminality was not in play as the facts involved a gay Brazilian man in a durable relationship with an Italian man which ended at the same time as CS’s own three year leave to remain expired. He was refused renewal of discretionary leave to remain but on appeal he ambitiously argued was that he had acquired a right of permanent residence arising from his durable relationship with his former Italian partner. He complained about the decision-maker’s refusal to recognise as a powerful factor an available putative right before the end of his relationship. Laws LJ held that:
13. … I do not accept that the appellant’s potential or putative rights, that could have been made good during the durable relationship, give rise as a matter of law to a duty after that relationship was over upon the shoulders of the Secretary of State to address the historic fact of those putative rights in making her discretionary decision.
It was thus clear to Longmore LJ that when considering Macastena’s deportation the decision-maker was under no duty to take into account the fact that he could have applied for a residence card during his durable relationship. Indeed, as his Lordship observed:
20. … Not only is the definition of extended family member in regulation 8(5) expressed in the present tense, so also is regulation 17(4).
The fact that the appellant government had failed to cite CS (Brazil) to either tier of the tribunal did not undermine its appeal. The authority, which applied by analogy, had been raised in the skeleton argument accompanying the permission to appeal application.
Macastena submitted that under article 3(2) of the Directive the host member state must, in accordance with its national legislation, facilitate entry and residence for a partner with whom the EU citizen has a durable relation, duly attested. This requirement, it was said, had not been satisfied because such residence had not been facilitated if the durable relationship had been ignored. However, reliance placed in the decision in Rahman (C‑83/11, EU:C:2012:519) backfired because in that judgment the CJEU was clear at para 22 that an application must be made for article 3(2) to be invoked. Domestically, the Court of Appeal made the same point in Aladeselu  EWCA Civ 144 where Richards LJ emphasised that a finding that an applicant comes within regulation 8 does not confer on him any substantive right to residence in the UK. Overall, the decision to grant a residence card is a matter for decision by the SSHD in the exercise of a broad discretion under regulation 17(4), subject to the procedural requirements in regulation 17(5).
(ii) FTT’s Discretion
Where the decision-maker had erred in law in the exercise of his discretion pursuant to regulation 17(4), it was possible for tribunal to remit the case for redetermination. Notably, however, it was not possible for the tribunal to exercise that discretion itself, nor to avoid the requirement by the device of assuming that the decision-maker had exercised a discretion and then deciding that it must have been exercised on a false basis. Thus UTJ Coker’s approach was flawed when she wrongly decided that the decision-maker had implicitly exercised his discretion adversely to Macastena.
EFMs are not expressly mentioned in article 28 of the Directive. But as the CJEU observed in Banger (C-89/17, EU:C:2018:570, discussed here), the concept of “family members” is used in other provisions also to include the persons envisaged in article 3(2).
Particularly, article 10 concerns the issuance of residence cards to “family members of a Union citizen” but article 10(2)(e) and (f) mention the documents to be presented for a residence card to be issued to the persons in article 3(2)(a) and (b). Moreover, article 8(5) relates to documents to be presented for a registration certificate to be issued to “family members” but article 8(5)(e) and (f) mention the persons in article 3(2)(a) and (b).
Interestingly, as discussed earlier, in Decker  EWCA Civ 1752 the Court of Appeal held that applying the correct test under article 27(2) of the Directive – or regulation 21(5)(c) of the 2006 Regulations – in order to be deported EFMs must represent “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.
However, subsequent to the enactment of the Immigration (European Economic Area) Regulations 2016, the test in old regulation 21(5)(c) is now propounded in new regulation 27(5)(c) and incorporates additional variables into the equation by allowing the person’s past conduct to be taken into account and further stipulating that “the threat does not need to be imminent”. In relation to the issuing of a residence card, and the discretion point in Macastena’s case, new regulation 18 has replaced old regulation 17.