Secretary of State for the Home Department v Aibangbee

Substantive residence rights under Directive 2004/38/EC belong to family members within article 2(2). A durable partner within article 3(2) is an extended family member with a limited procedural right to facilitation, extensive examination and reasons for refusal. Article 25(1) prevents a residence card from being made a precondition for exercising an existing right; it does not confer the right itself. Under the Immigration (European Economic Area) Regulations 2006, an extended family member is treated as a family member only after a qualifying residence card has been issued. The five-year period for permanent residence therefore runs from issuance of the card, not from the beginning of the durable relationship.

The respondent, a Liberian citizen, was the unmarried partner of a Czech national. He had lived with her in the United Kingdom in a durable relationship since 2008, but received a residence card only in May 2013. His application for a permanent residence card, made in February 2015, was refused because the Secretary of State treated the five-year period as beginning in May 2013.

The First-tier Tribunal allowed his appeal, and the Upper Tribunal dismissed the Secretary of State’s appeal. The Secretary of State appealed to the Court of Appeal. The respondent relied on articles 16 and 25 of the Directive. Although he obtained a permanent residence card during the proceedings, the court continued the appeal because of the importance of the issues.

Appeal allowed. The Upper Tribunal’s determination was set aside, the First-tier Tribunal’s determination was set aside, and the respondent’s appeal against the Secretary of State’s original decision was dismissed.

1. The Directive distinguishes between family members defined in article 2(2) and extended family members covered by article 3(2). The former enjoy substantive rights of entry and residence. The latter have a limited procedural right to have entry and residence facilitated, following an extensive examination of their personal circumstances and with reasons given for refusal. This distinction was confirmed and followed in Rahman [2013] QB 249. The later decisions in SM (Algeria) [2018] UKSC 9 and Banger [2019] 1 CMLR 6 were consistent with that analysis.
2. Article 16(2) confers a substantive right of permanent residence only on family members within article 2(2). Article 25(1) merely prevents possession of a residence card being made a precondition for exercising an existing right. It does not create a right of residence or determine who acquires one.
3. Under the Immigration (European Economic Area) Regulations 2006, regulation 7(3) treats an extended family member as a family member only where the required document has been issued and the relevant conditions continue to be met. Accordingly, regulation 15(1)(b) requires five years of residence in accordance with the Regulations after the issue of the residence card.
4. Macastena [2018] EWCA Civ 1558 was decisive. Its reasoning meant that time spent in a durable relationship before the issue of a residence card could not be counted. The contrary reading of one sentence in paragraph 15 of that judgment was rejected. Kunwar [2019] UKUT 00063 (IAC) provided a correct encapsulation of the scheme.

• Court of Appeal (Civil Division): allowed the Secretary of State’s appeal and dismissed the respondent’s appeal to the tribunal: [2019] EWCA Civ 339.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State’s appeal against the First-tier Tribunal’s decision.
• First-tier Tribunal: allowed the respondent’s appeal against refusal of a permanent residence card.