FD (Algeria) v Secretary of State for the Home Department

Article 3(2)(b) of Directive 2004/38 of the European Community does not confer an automatic right of entry on an unmarried partner in a durable relationship. The host state must conduct an extensive examination of personal circumstances and retains a discretion over entry. It is arguable that unlawful presence may be relevant, but reliance on it requires adequate explanation of its relevance in the individual case. Domestic requirements applied to partners of British citizens cannot simply be transplanted into Union-law cases without fuller justification. Permission was refused on the proposed ground asserting an unconditional right of entry, but granted on the remaining issues.

An Algerian national had previously held a European Union residence document as the spouse of a Portuguese national. After that marriage ended, he applied for a residence card based on his durable relationship with a French national. The Secretary of State refused the application, relying on his unlawful overstaying and a policy treating unmarried partners of EEA nationals substantially like unmarried partners of British citizens.

An immigration judge accepted that a durable relationship existed, but the Asylum and Immigration Tribunal upheld the refusal under [AIT: AA/13231/2006]. The Court of Appeal considered an application for permission to appeal, addressing whether Article 3(2)(b) created an automatic right of entry and how the required examination of personal circumstances should be conducted.

Disposition. The application for permission to appeal was granted on the second ground. Permission was not granted on the first ground insofar as it asserted that Article 3(2) gave an other family member an unconditional right to enter. A hearing before three Lords Justices was directed.

1. Article 2 distinguishes full family members from the separate category of other family members addressed by Article 3. A partner in a durable relationship falls within Article 3(2)(b), but is not thereby placed in the same position as a spouse or other full family member.
2. Article 3(2)(b) expressly requires the host Member State to undertake an extensive examination of personal circumstances. That requirement would be inconsistent with an automatic right of entry. The Secretary of State therefore retains a discretion, reflected in the domestic regulations, whether to permit entry or residence.
3. The court was seriously doubtful that unlawful presence could never be considered. The authorities relied on in support of that argument did not obviously establish it. Nevertheless, it was strongly arguable that, if unlawful presence was relied on, the Secretary of State had to provide fuller reasoning and circumstantial explanation showing why it was relevant in the particular case.
4. Applying to an EU citizen’s partner the domestic requirements used for partners of British citizens might not satisfy Union-law requirements. A finding of a durable relationship did not itself determine the application, but any reliance on domestic residence requirements required a fuller explanation of why the relationship justified refusal under the Union-law scheme.

The court stressed that its observations were directed to permission and would not bind the constitution hearing the substantive appeal. The appellant was allowed 28 days to consider redrafting the submissions.

• Court of Appeal (Civil Division): granted permission to appeal on the issues concerning the examination of personal circumstances, unlawful presence and the use of domestic requirements; directed a hearing before three Lords Justices.
• Asylum and Immigration Tribunal [AIT: AA/13231/2006]: upheld the Secretary of State’s refusal, accepting that Article 3(2)(b) conferred a discretion rather than an automatic right of entry.