Upper Tribunal (Immigration and asylum chamber), 2019-02-15, EA/06365/2017
| Jurisdiction | UK Non-devolved |
| Date | 15 February 2019 |
| Published date | 21 March 2019 |
| Hearing Date | 04 October 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | EA/06365/2017 |
Appeal Number: EA/06365/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/06365/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 4 October 2018 |
On 15 February 2019 |
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Before
UPPER TRIBUNAL JUDGE RINTOUL
UPPER TRIBUNAL JUDGE BLUM
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
RAJAN CHALISE
(ANONYMITY DIRECTION NOT MADE)
Respondent
Representation:
For the Appellant: Mr S Whitwell Senior Home Office Presenting Officer
For the Respondent: Mr R Sharma, instructed by Paul John Solicitors
DECISION AND REASONS
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The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge B Lloyd promulgated on 21 February 2018 allowing Mr Chalise’s appeal under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) against a decision made on 31 March 2017 to revoke a residence card issued to him on 31 August 2013.
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The respondent arrived in the United Kingdom with Entry Clearance as a Tier 4 Student Migrant in September 2009. His leave in that capacity was extended until 7 October 2013.
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In December 2010 the appellant met his former partner, Ms K, an EEA national who had been working in the United Kingdom since 5 July 2010, and they moved in together after a month or two. In 2013, the respondent applied for, and was on 31 October 2013 granted, a residence card as confirmation of his right of residence as the extended family member of an EEA national. That card was valid until 31 August 2018 and had been issued to him as the Secretary of State had been satisfied that he was in a durable partnership with Ms K and that she was exercising Treaty Rights.
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In September 2016, the respondent’s relationship with Ms K broke down, and she returned to France.
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On 31 March 2017 the Secretary of State revoked the residence card as the respondent had on 4 October 2016 informed him that the relationship with Ms K had broken down, and she was no longer living in the United Kingdom. He concluded that, pursuant to reg 24 (3) of the EEA Regulations 2016, he entitled to revoke the residence cards as the respondent had ceased to have a right to reside under those Regulations as Ms K was no longer living in the United Kingdom. That concession by the respondent was made in context of an application for a further residence card made on 4 October 2016.
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On appeal, the respondent accepted (as is recorded in the First-tier Tribunal’s decision at [10] ) that he could not meet the requirements under the EEA Regulations to obtain a retained right of residence, but argued that he is entitled to confirmation of his right of permanent residence on the basis that this was provided for under Directive 2004/38/EC (“the Directive”).
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The case as put to the First-tier Tribunal was that Ms K had exercised Treaty Rights from 5 July 2010 to 2 September 2016; and, the respondent and Ms K had been living together for five years before it broke down in September 2016. It was argued that they had been in a genuine relationship for over five years.
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It was submitted that once someone is recognised under the Directive as falling within article 3.2 and granted residence, then as can be seen from article 8, that person is to be treated as a family member and on that basis, taking account also of recital 15, the respondent had acquired permanent residence.
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The judge accepted those arguments and concluded that the respondent was entitled to confirmation of his right of permanent residence.
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The Secretary of State sought permission to appeal on the grounds that the judge had erred as:
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On a proper construction of reg 7 (3) of the EEA Regulations the respondent had become a family member only from the date of issue of the residence card on 31 August 2013, and;
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On that basis, could not have acquired 5 years continuous residence in accordance with the EEA Regulations as the relationship had broken down; and,
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Time spent prior to the issue of a residence card could not be taken into account.
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On 4 June 2018 First-tier Tribunal Judge Mark Davies granted permission.
The Law
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The EEA Regulations provide:
7.—(1) In these Regulations, “family member” means, in relation to a person (“A”)—
(a)A’s spouse or civil partner;
(b)A’s direct descendants, or the direct descendants of A’s spouse or civil partner who are either—
(i)aged under 21; or
(ii)dependants of A, or of A’s spouse or civil partner;
(c) dependent direct relatives in A’s ascending line, or in that of A’s spouse or civil partner.
(2) Where A is a student residing in the United Kingdom otherwise than under regulation 13 (initial right of residence), a person is not a family member of A under paragraph (1)(b) or (c) unless—
(a)in the case of paragraph (1)(b), the person is the dependent child of A or of A’s spouse or civil partner; or
(b)A also falls within one of the other categories of qualified person mentioned in regulation 6(1).
(3) A person (“B”) who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card must be treated as a family member of A, provided—
(a)B continues to satisfy the conditions in regulation 8(2), (3), (4) or (5); and
(b)the EEA family permit, registration certificate or residence card remains in force.
(4) A must be an EEA national unless regulation 9 applies (family members of British citizens)
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The Directive provides in its recitals:
(6)In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.
(15) Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.
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The Directive also provides:
Article 2 definitions
For the purposes of this directive…
“Family member means
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The spouse
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The partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State
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The direct descendants who are under the age of 21 or are dependants and those of the spouse defined in point (b);
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dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)
Article 3 Beneficiaries
1. This Directive shall 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 point 2 of Article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling
under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
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the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people
Article 8: Administrative formalities for Union citizens
1. Without prejudice to Article 5(5), for periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities.
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5. For the registration certificate to be issued to family members of Union citizens, who are themselves Union citizens, Member States may require the following documents to be presented:
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in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen
Art 10 issue of residence cards
1. The right of...
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