Bancroft Constantine Rose v The Secretary of State for the Home Department

Other family members, including durable partners, are not within the personal scope of the expulsion safeguards in Article 27 of Directive 2004/38/EC. They therefore cannot rely on Exception 3 in section 33 of the UK Borders Act 2007, which concerns rights under the EU Treaties.

However, where a person satisfies the definition of an extended family member under the Immigration (European Economic Area) Regulations 2006, the Secretary of State must exercise the discretion to issue a residence card before the consequences for deportation and Article 8 can be fully assessed. The Tribunal cannot exercise that discretion for the first time. A deportation decision is not in accordance with the law if this necessary stage, including its effect on the EEA national’s free-movement rights, has not been completed.

The appellant, a Jamaican national, received a sentence of 12 months’ imprisonment after pleading guilty to possessing an improperly obtained identity document. The Secretary of State refused his application for a residence card based on his relationship with an EEA national and made an automatic deportation decision under the UK Borders Act 2007.

The First-tier Tribunal dismissed his appeal. Senior Immigration Judge Ward held that its determination contained a material error of law, set it aside and directed a resumed hearing. The Upper Tribunal accepted that the appellant had family life with his partner and her son, and found that he was in a durable relationship qualifying him as an extended family member under regulation 8(5) of the Immigration (European Economic Area) Regulations 2006.

The central issues were whether he could invoke Exception 3 to automatic deportation and whether the unresolved discretion to issue a residence card prevented a lawful assessment under Exception 1 and Article 8.

1. The appeal was allowed to a limited extent. The First-tier Tribunal’s decision had materially erred in law and was set aside. The Secretary of State had to reconsider whether the appellant fell within Exception 1 to section 33 of the UK Borders Act 2007.

2. The appellant was a foreign criminal for section 32 purposes. Automatic deportation was therefore required unless an exception in section 33 applied.

3. Exception 3 did not apply. Article 27(1) of Directive 2004/38/EC protects Union citizens and family members as defined by Article 2(2). That definition does not include other or extended family members. A durable partner is separately addressed by Article 3(2)(b) and is not even within the Directive’s category of other family members in Article 3(2)(a). National provisions which extend greater protection do not create rights under the EU Treaties for Exception 3 purposes.

4. The appellant nevertheless met regulation 8(5) of the Immigration (European Economic Area) Regulations 2006. A durable relationship is not co-extensive with Article 8 family life, but the evidence of cohabitation, intended marriage and continued commitment established durability.

5. That finding did not itself confer a residence card. Under regulation 17(4), issuing a card to an extended family member is discretionary, and the Tribunal could not exercise the discretion until the Secretary of State had done so. If exercised favourably, regulation 20(1) could still permit action on public-policy, public-security or public-health grounds, requiring a fresh decision.

6. The Secretary of State’s refusal to recognise the appellant as an extended family member meant that the regulation 17(4) discretion and its effect on the EEA partner’s free-movement rights had not been assessed. That omission could materially affect the Article 8 balance, which had to take account of the rights of the appellant’s partner and her child. The automatic-deportation decision was consequently not in accordance with the law.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal remade the appeal after Senior Immigration Judge Ward had found a material error of law. It allowed the appeal to the limited extent that the Secretary of State must reconsider Exception 1 under section 33 of the UK Borders Act 2007.
• First-tier Tribunal: The appeal against the refusal of a residence card and the deportation decision was dismissed on 29 June 2010. Its decision was set aside for material error of law.