Upper Tribunal (Immigration and asylum chamber), 2018-12-28, EA/05066/2016
| Jurisdiction | UK Non-devolved |
| Date | 28 December 2018 |
| Published date | 23 January 2019 |
| Hearing Date | 06 November 2018 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/05066/2016 |
Appeal Number: EA/05066/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/05066/2016
THE IMMIGRATION ACTS
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Heard at Newport |
Decision & Reasons Promulgated |
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On 6 November 2018 |
On 28 December 2018 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE Secretary of State FOR THE Home Department
Appellant
and
MUHAMMAD ASIF SAEED KUNWAR
(anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr C Howells, Senior Home Office Presenting Officer
For the Respondent: Mr R H Rashid instructed by Marks & Marks Solicitors
DECISION AND REASONS
Introduction
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The respondent (whom I shall refer to as “the claimant”) is a citizen of Pakistan who was born on 4 April 1981.
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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.
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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.
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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 Background
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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.
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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.
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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.
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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:
“7. Put shortly, I accept and agree with Mr Rashid’s submissions on the appellant’s behalf. On the basis of the uncontested evidence before me that the appellant and his EEA sponsor Ms Opara were cohabiting from January 2007 until their relationship ended in March 2014, and in the light of the respondent’s concession that Ms Opara was exercising Treaty rights in the UK for a continuous period of five years before leaving the UK and returning to Poland, I find that the appellant acquired the right to reside in the UK permanently as a family member of an EEA national with whom he resided in the UK in accordance with the 2006 Regulations for a continuous period of five years, pursuant to Regulation 15(1)(b). Accordingly, and for these reasons, his appeal succeeds and is allowed. In my judgment the appellant is entitled to a permanent residence card as confirmation of a right to reside in the UK, pursuant to the 2006 Regulations”.
The Issue
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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.
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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 Law
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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.
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The claimant relies upon reg 15(1)(b) as the basis for his permanent right of residence. That provides as follows:
“15. (1) The following persons acquire the right to residence in the United Kingdom permanently –
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(b) a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years; ...”
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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.
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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)”.
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Regulation 7(3) provides as follows:
“Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in Regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked”.
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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:
“A person satisfies the condition in this paragraph [and is therefore an ‘extended family member’] if the 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”.
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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).
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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).
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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 following persons shall acquire the right to residence in the United Kingdom permanently –
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(b)...
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