Selim Macastena v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lady Justice King,Lord Justice Coulson |
| Judgment Date | 05 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1558 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C9/2016/2189 |
| Date | 05 July 2018 |
[2018] EWCA Civ 1558
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RIGHT HONOURABLE Lord Justice Longmore
THE RIGHT HONOURABLE Lady Justice King DBE
and
THE RIGHT HONOURABLE Lord Justice Coulson
Case No: C9/2016/2189
Mr David Blundell (instructed by Government Legal Department) for the Appellant
Mr Manjit Gill QC (instructed by Bankfield Heath Solicitors) for the Respondent
Hearing dates: 19 th June 2018
Approved Judgment
Introduction
This appeal raises the question whether time spent by a man in a durable relationship with a woman who is an EEA national with a permanent right of residence in the United Kingdom can be added to subsequent time as a spouse to meet the requirement of 5 years continuous lawful residence before the man can himself acquire a permanent right of residence. The answer is that time so spent cannot be added unless the Secretary of State for the Home Department has (or perhaps ought to have) issued the man with a residence card as an “extended family member”, pursuant to the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). The answer to this question is important for foreign criminals with ordinary rights of residence who can only be deported “on grounds of public policy or security”; if, however, they have a permanent right of residence they can only be deported on “serious grounds of public policy or security”.
Facts
Mr Macastena is a Kosovan national who entered the United Kingdom unlawfully on 3 rd July 2005 and subsequently formed a relationship, including cohabitation, with Ms L a Polish national living and working lawfully in the United Kingdom. They became engaged in December 2007 and went to Kosovo where they married on 6 th August 2008. On 22 nd August 2008 he was granted an EEA family permit as the spouse of Ms L by an Entry Clearance Officer and, after re-entry on 5 th September 2008, he was issued with a 5 year residence card on 23 rd September 2009 as a family member under the 2006 regulations. On 30 th July 2013, after he and Mrs L had divorced and after he had received a new residence card as an individual who retained a right of residence, he was convicted of unlawful wounding contrary to section 20 of the Offences Against the Person Act. He and his brother had attacked a fellow motorist (Mr Prater) at 10.00 p.m. at night. Mr Macastena, driving with his brother, had cut across Mr Prater's path and became cross when Mr Prater hooted his horn. He braked sharply, put his car into reverse and drove backwards forcing Mr Prater to stop. He then attacked Mr Prater with a saw while his brother used a hammer. On 30 th August 2013 Mr Macastena was sentenced to 24 months' imprisonment.
The Secretary of State decided that it was appropriate to deport Mr Macastena, served notice of intention to deport on 24 th October 2013 and signed a deportation order on 13 th August 2014. On 15 th August 2014 Mr Macastena lodged notice of appeal to the First Tier Tribunal; the hearing took place on 19 th May 2015 and on 18 th June 2015 FTT Judge S. J. Clark allowed his appeal. The Secretary of State appealed to the Upper Tribunal which dismissed her appeal. There is now an appeal to this court.
As noted in para 1 above, a foreign criminal who has acquired a right of residence under the 2006 Regulations can only be deported if the Secretary of State decides that his removal is “justified on grounds of public policy or public security …” pursuant to regulation 19(3). In respect of a person with a permanent right of residence there is a more stringent test. A decision to deport may not be made “… except on serious grounds of public policy or public security” (regulation 21(3)).
The question therefore is whether Mr Macastena had acquired such permanent right of residence at the time of the decision to deport him. If not, he will fall to be deported on grounds of public policy. If he had acquired such a right, he can only be deported on “serious grounds of public policy”.
Permanent right of residence is dealt with in regulation 15 (1) which provides that both an EEA national who has resided in the United Kingdom for a continuous period of 5 years, and a family member of a EEA national who has resided with that EEA national for a continuous period of 5 years, acquire a permanent right of residence in the United Kingdom. A sentence of imprisonment interrupts any period of residence which is no longer “continuous”. Mr Macastena became a family member of an EEA national when he married Ms L on 6 th August 2008 but he did not start residing lawfully with her in the United Kingdom until 5 th September 2008. Since he began his sentence on 30 th August 2013, he misses 5 years' continuous residence by the small margin of 5 days.
He maintains, however, that before he married Ms L, he was an “extended family member” because he was in a durable relationship with Ms L in accordance with the definition of extended family member in regulation 8(5) of the 2006 Regulations and that, on that basis, he had (or ought to be treated as if he had) a permanent right of residence for 5 years. Regulation 8(1) defines “extended family member” to include a person who satisfies the conditions in para (5) which specifies satisfaction of the condition:-
“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.”
Mr Macastena therefore contends that he can only be deported or removed on serious grounds of policy which, he says, do not exist.
Decisions below
The Secretary of State in her decision letter of 11 th August 2014 said that, although Mr Macastena had a right of residence, he fell short of acquiring a right of permanent residence since he had not been continuously resident with his EEA national wife (or as an individual who had retained a right of residence after his divorce) for 5 years. It was sufficient therefore to apply the lower standard of grounds for deportation (namely “grounds of public policy” rather than “serious grounds of public policy”) (see paras 17–18). She applied that lower standard and decided that public policy required his deportation. That was a proportionate decision when balanced against the continuing risk Mr Macastena posed to the public. There would moreover be no breach of Mr Macastena's Article 8 rights under the Immigrations Rules if he was deported.
FTT Judge S. J. Clark, however, accepted that Mr Macastena had acquired a permanent right to reside in the United Kingdom because he was satisfied that Mr M had been in a durable relationship with Ms L before their marriage (para 13). The right question therefore was whether there were “serious” grounds of public policy which necessitated his deportation. He held that there were no such serious grounds, particularly in the light of the fact that Mr Macastena was now settled in the plumbing business at which he worked and of which he owned half.
The Secretary of State obtained permission to appeal to the Upper Tribunal which promulgated its decision on 20 th January 2016. The Secretary of State accepted that, pursuant to regulation 17(1)-(3), she was obliged to issue a residence card to any family member of an EEA national who herself had a permanent right of residence and thus to treat such family member as himself having a permanent right of residence but submitted that that obligation only applied to family members (namely, for the purposes of this case, spouses) not persons in a durable relationship who were in the words of the regulation “extended family members”. They were catered for by regulation 17(4) and (5) which provided:-
“(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if –
a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and
b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.
(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.”
In the light of these regulations, the Secretary of State contended that, unlike full family members...
To continue reading
Request your trial
-
Batool and Ors (Other Family Members: Eu Exit)
...[2012] All ER (EC) 373; [2012] 1 CMLR 45; [2012] Imm AR 230; [2012] INLR 151 Macastena v Secretary of State for the Home Department [2018] EWCA Civ 1558; [2019] 1 WLR 365; [2019] Imm AR 28; [2019] INLR 374 Secretary of State for the Home Department v Aibangbee [2019] EWCA Civ 339; [2019] 1 ......
-
Upper Tribunal (Immigration and asylum chamber), 2019-02-15, EA/06365/2017
...spent in accordance with the regulations and so counts towards the acquisition of a permanent right of residence. In Macastena v SSHD [2018] EWCA Civ 1558, Mr Macastena argued that since the Secretary of State knew of his durable relationship with his partner and has never contested that it......
-
Upper Tribunal (Immigration and asylum chamber), 2022-07-19, [2022] UKUT 00219 (IAC) (Batool and Ors. (other family members: EU exit))
...issued with the relevant permit, certificate or card. See SSHD v Aibangbee [2019] EWCA Civ 339; [2019] Imm AR 979; Macastena v SSHD [2018] EWCA Civ 1558; [2019] Imm AR Amongst the other Court of Appeal judgments on extended family members are Chowdhury v SSHD [2021] EWCA Civ 1220; [2021] Im......
-
Sabina Begum v Secretary of State for the Home Department
...of State for the Home Department [2019] EWCA Civ 124; [2019] 1 WLR 3207, CAMacastena v Secretary of State for the Home Department [2018] EWCA Civ 1558; [2019] 1 WLR 365, CAMinistry of Justice v O’Brien (No 2) (Case C-432/17) EU:C:2018:879; [2019] ICR 505, ECJMora Romero v Landesversicherung......