CS (Brazil) v Secretary of State for the Home Department

A person in a durable relationship with an EEA national may, while that relationship subsists, require the Secretary of State to examine whether residence should be facilitated under Article 3(2)(b) of the relevant Directive. This is a right to consideration, not an automatic right of residence.

Once the durable relationship has ended, the former partner falls outside that regime and acquires no retained right comparable to that arising from divorce or termination of a registered partnership. A residence card evidences an existing right but does not create one. The rule that possession of such a document cannot be a precondition therefore cannot revive an expired eligibility or require later consideration of a right which was never invoked.

The appellant, a Brazilian national, had lived in the United Kingdom with an Italian national in a durable same-sex relationship. They did not enter into a statutory civil partnership. The appellant had previously received discretionary leave following a successful claim under Article 8 of the European Convention on Human Rights, but the relationship ended before that leave expired.

The Secretary of State refused further leave in July 2007. An immigration judge dismissed the appellant's appeal. Following a reconsideration ordered by the High Court, the Asylum and Immigration Tribunal again dismissed it. The appellant accepted that the provisions retaining residence rights after divorce or termination of a registered partnership did not apply.

The central issue was whether his former eligibility, during the durable relationship, for consideration under Article 3(2)(b) of Directive 2004/3AD/C nevertheless had to be recognised or considered after the relationship had ended.

1. Appeal dismissed. Laws LJ, with whom Hooper and Toulson LJJ agreed, held that the appellant possessed no right under Directive 2004/3AD/C or the Immigration (European Economic Area) Regulations 2006 when the Secretary of State considered his application in July 2007. Article 3(2)(b) and Regulation 8(5) describe an existing durable relationship. By July 2007 that relationship and the corresponding status had ended: paras [13]–[16].
2. During the relationship, the appellant could have asked the Secretary of State to facilitate his residence under the Community regime. The Secretary of State would then have been required to examine his personal circumstances extensively and decide under Regulation 17(4)(b) whether it was appropriate to issue a residence card. The substantive entitlement was therefore to proper consideration of a claim for residence, rather than an automatic right to reside for five years: paras [10], [13]–[14].
3. A residence card is evidence of rights administered by the regime and is not constitutive of those rights. Article 25 prevents possession of a residence document from being made a precondition to exercising an existing right. It assumes that such a right exists and does not itself confer one. Consequently, it could not preserve or revive the appellant's former eligibility after the relationship ended: paras [11], [13].
4. The appellant's potential ability to seek residence while the relationship subsisted created no legal duty, after its termination, to consider that historic possibility when deciding a later discretionary application for leave. The earlier right to consideration arose only if the appellant invoked it, which he had not done: paras [13]–[14].
5. The court refused to make a reference to the Court of Justice. The Community legislation clearly did not contemplate the claim advanced, and there was no question requiring a reference: para [14].

1. Court of Appeal (Civil Division): The appeal was dismissed by [2009] EWCA Civ 480. The court upheld the conclusion that the appellant had no relevant residence right after his durable relationship ended.
2. Asylum and Immigration Tribunal: On 1 July 2008, Senior Immigration Judge Latter dismissed the reconsidered appeal and confirmed the earlier immigration judge's decision.
3. High Court: On 18 January 2008, Burton J ordered reconsideration of the immigration appeal.
4. Immigration Judge: Immigration Judge Talbot dismissed the original appeal in 2007, holding that the appellant had acquired no permanent or retained right of residence.