The Home Office won this appeal because of the effects of the Court of Appeal’s judgment in Macastena  EWCA Civ 1558 (discussed here) whereby 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 Immigration (European Economic Area) Regulations 2006. UTJ Grubb held that rights of residence of extended family members are only conferred once a residence card is issued. Mr Kunwar was a citizen of Pakistan born on 4 April 1981. He applied for permanent residence and his application was refused but on appeal FTTJ Barrowclough allowed his appeal. He relied on his durable relationship with one Ms Opara, a Polish and EEA national. The couple began their (unmarried) relationship in 2006 and lived together from January 2007 until March 2014 when their relationship broke down and Ms Opara returned to Poland. Mr Kunwar claimed that between March 2009 and March 2014 he was resident in the UK in accordance with the 2006 Regulations for a continuous period of five years. He put emphasis on the fact that he had been granted a residence card as an extended family member in September 2009 and also relied on the fact that he had been in a durable relationship with Ms Opara since at least March 2009.
Mr Kunwar argued that added together those two periods, amounted to five years’ continuous lawful residence pursuant to the 2006 Regulations. FTTJ Barrowclough accepted that Ms Opara had been exercising Treaty rights during that time. He also accepted the basis of Mr Kunwar’s case. Based upon his durable relationship with Ms Opara between March 2009 and March 2014, the judge found that he had acquired the right to permanent residence as a family member of an EEA national with whom he resided in the UK for a continuous period of five years pursuant to regulation 15(1)(b) of the 2006 Regulations. The Home Office argued that Mr Kunwar was not in position to “bolt on” extra time by relying upon his durable relationship prior to the issue of the residence card in 2009 so as to establish a period of five years’ continuous residence in keeping with the 2006 Regulations. It was argued that until the Home Office exercised its discretion to issue a residence card under regulation 17(4), Mr Kunwar was not a “family member” as defined in regulation 7(3) read with regulation 8(5).
Notably, as regards Macastena the counterpoint was made, albeit unsuccessfully, that the Court of Appeal 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.
Upper Tribunal Judge Grubb
Mr Kunwar also submitted that the result 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. In the present case, discretion had been exercised to issue a residence card in September 2009. Moreover, since the application was made in May 2009, the decision-maker must have been satisfied that Mr Kunwar was in a durable relationship with Ms Opara at least from March 2009. Notably FTTJ Barrowclough had found that as a fact in his decision. Mr Kunwar did not fall within the definition of a family member of regulation 7 (transposing article 2.2 of the Citizens’ Directive) of the 2006 Regulations and instead fell within regulation 8 (transposing article 3.2 of the Citizens’ Directive) which provides coverage to extended family members. Those who are extended family members, in particular under regulation 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 regulation 17(4).
According to the CJEU, only “family members” as defined in article 2 of the Citizens’ Directive have a right of residence derived from the EU national. On the other hand, “other family members” or individuals in a “durable relationship, duly attested” with the EU national do not have a right of residence by virtue of the Directive. In Rahman (C‑83/11, EU:C:2012:519), the CJEU concluded that article 3.2 does not oblige member states to accord a right of entry or residence to “other family members” or those in a “durable relationship” with the EU national. Rather, the Directive imposes an obligation to “facilitate entry and residence” following the undertaking of an “extensive examination of the personal circumstances” of the persons concerned. As held in Banger (C-89/17, EU:C:2018:570, discussed here), 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”.
Only once the residence card is actually issued do the 2006 Regulations recognise that an individual who has established that they are an “extended family member” has a right of residence. After than point in time, but only then, are they treated as a “family member” and UTJ Grubb explained further:
28. … 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 regulation 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”.
Until issued with a residence card, a person in a durable relationship with an EU national will not have a right of residence in the UK. In this case, Mr Kunwar’s right of residence only arose in September 2009 a residence card was issued to him. The residence card issued could not retrospectively grant him a right of residence backdated to March 2009 and overall it was impossible to show that Mr Kunwar had resided in the UK in accordance with the 2006 Regulations for a continuous period of five years as a “family member” in order to establish a permanent right of residence under regulation 15(1)(b).
Mr Kunwar relied upon Macastena to argue that although the appellant in that case 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. It was argued 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”. Mr Kunwar submitted that he had been issued with a residence card in September 2009. Therefore in accordance with the judge’s factual finding that the durable relationship existed at least from March 2009, he had established the necessary five years’ continuous residence. UTJ Grubb rejected the argument as being off point and said:
38. 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.
The substance of Longmore LJ’s reasoning ran counter to the submission and the Court of Appeal repeatedly emphasised the distinction between the rights of residence conferred upon “family members” and the right to “facilitate entry and residence” for persons in a durable relationship in keeping with the fortification of that distinction in Rahman. Longmore LJ was mindful of the earlier approach in Aladeselu  EWCA Civ 144 that a finding that an applicant comes within regulation 8 does not confer on him any substantive right to residence in the UK.
If anything Macastena only confirmed and applied 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 under regulation 17(4) of the 2006 Regulations. Only once the residence card is issued do the 2006 Regulations confer upon an extended family member, a right of residence because from then onwards he or she is treated as a family member and may, if appropriate, rely upon the rights of residence recognised in regulation 13(2) and 14(2). Overall, UTJ Grubb held at paragraph 39 that only then does an extended family member begin to acquire a period of lawful residence capable of counting towards establishing a “permanent right of residence” on the basis of residing in the UK for a continuous period of five years under regulation 15(1)(b).
Therefore, FTTJ Barrowclough had erred in law in finding that Mr Kunwar had established the required period of residence under regulation 15(1)(b) of the 2006 Regulations in order to be entitled to a permanent residence card. The headnote summarised the position as:
(1) 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 regulation 17(4) of the 2006 Regulations (now regulation 18(4) of the 2016 Regulations).
(2) Following Macastena v SSHD  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.
(3) 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 (regulation 7(3)).
(4) 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 regulation 15 based upon 5 years’ continuous residence “in accordance with” the Regulations.
(5) 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 article 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 article 3.2.
In Aibangbee  EWCA Civ 339 the Court of Appeal reiterated the point that time spent in a durable relationship prior to the issue of a residence card cannot be taken into account at all. The court rejected various submissions made on the basis of Banger and subscribed to the approach articulated by UTJ Grubb, describing it as:
38. … a neat encapsulation of the effect of the relevant provisions, giving proper effect to the judgment in Macastena.
In another interesting development, regulation 3 of the Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019 amends the Immigration (Economic Area) Regulations 2016 in order to give twofold effect to the CJEU’s judgment in Banger.
First of all, regulation 3 amends regulations 2 and 36 of the 2016 Regulations to introduce a right of appeal against a decision to refuse residence documentation to extended family members under regulations 12(4), 17(5) or 18(4).
Secondly, it amends regulations 7 and 9 of the 2016 Regulations to give extended family members who meet certain conditions the right to enter and reside in the UK, when accompanying a returning British citizen who has exercised treaty rights in another member state.
In the long run, it will be interesting to see whether Brexit hysteria and rising racism will result in mass victimisation of EU nationals and their families at the hands of the Home Office and create yet another immigration scandal for the UK.