Macastena v Secretary of State for the Home Department

Time spent in a durable relationship with an EEA national cannot be added to subsequent lawful residence as a spouse when calculating five years’ continuous lawful residence for a permanent right of residence, unless the Secretary of State issued, or ought following an application to have issued, a residence card under the Immigration (European Economic Area) Regulations 2006.

Notification of a durable relationship does not amount to an application or trigger the required extensive examination of personal circumstances. A tribunal cannot exercise the Secretary of State’s discretion where the Secretary of State has made no decision. It may identify an error of law in an actual decision and remit the matter for lawful reconsideration.

A Kosovan national entered the United Kingdom unlawfully and later formed a durable relationship with a Polish EEA national. They married in Kosovo, after which he re-entered with an EEA family permit and obtained a residence card as her spouse. His subsequent imprisonment interrupted his continuous residence five days before he would have completed five years as a family member.

Following his conviction, the Secretary of State ordered his deportation. The First-tier Tribunal allowed his appeal on the basis that his pre-marital durable relationship could be added to his residence as a spouse, giving him a permanent right of residence and the protection of the higher “serious grounds” threshold. The Upper Tribunal dismissed the Secretary of State’s appeal.

The central issues were whether residence during the durable relationship could count despite the absence of an application for an extended-family-member residence card, and whether a tribunal could exercise the Secretary of State’s unexercised discretion.

1. The Secretary of State’s appeal was allowed unanimously. Time spent in a durable relationship before marriage could not simply be added to subsequent lawful residence as a spouse. The appellant had made no application for a residence card as an extended family member under the Immigration (European Economic Area) Regulations 2006. His pre-marital presence therefore remained unlawful and could not establish five years’ continuous lawful residence: paras 15–17.

2. An extended family member has no substantive right of residence merely by proving a durable relationship. Under regulation 17(4), the Secretary of State has a broad discretion whether to issue a residence card after an application. Regulation 17(5) requires an extensive examination of the applicant’s personal circumstances. Merely informing the Secretary of State of cohabitation neither constitutes an application nor triggers that examination: paras 17, 24.

3. Regulations 8(5) and 17(4) are expressed in the present tense. A person who could have applied while a durable relationship existed cannot, after that relationship has ended, require the Secretary of State to assess the historical existence of putative rights. The reasoning in CS (Brazil) v Secretary of State for the Home Department [2009] EWCA Civ 480 was applied by analogy: paras 18–21.

4. Article 3(2) of the Citizens Directive, Directive 2004/38/EC requires national legislation to facilitate the residence of a durable partner through a reasoned decision based on extensive examination of personal circumstances. It nevertheless envisages that an application must be made. No incompatibility between the domestic scheme and the Directive was established: paras 22–24.

5. A tribunal cannot exercise the discretion conferred on the Secretary of State by regulation 17(4) when the Secretary of State has made no decision. Nor may it assume an adverse exercise of discretion and substitute its own view. If an actual exercise of discretion is legally erroneous, the tribunal may identify that error and remit the matter for a lawful decision: para 25.

6. The tribunals had also failed to undertake the extensive examination required by regulation 17(5), although that alternative conclusion was unnecessary to the result. The case was remitted to the Upper Tribunal solely to consider the outstanding Article 8 claim outside the Immigration Rules and the argument based on de minimis non curat lex: paras 26–29.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed unanimously. The case was remitted to the Upper Tribunal solely to determine the Article 8 claim outside the Immigration Rules and the de minimis argument.
2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the Secretary of State’s appeal. It held that the First-tier Tribunal could review or exercise the discretion concerning the pre-marital durable relationship.
3. First-tier Tribunal: Allowed the appeal against deportation. It treated the pre-marital durable relationship as contributing to five years’ residence and found no serious grounds of public policy justifying deportation.