The Secretary of State for the Home Department v Muhammad Asif Saeed Kunwar

An extended family member in a durable relationship with an EEA national has no right of residence merely from satisfying the durable-relationship condition. Under the Immigration (EEA) Regulations 2006, the person is treated as a family member only after the Secretary of State issues the relevant residence documentation under regulation 17(4).

Only residence after that issue is residence in accordance with the Regulations capable of counting towards the five-year period for a permanent right of residence under regulation 15(1)(b). Earlier time in the durable relationship cannot be aggregated. That scheme is compatible with Directive 2004/38/EC, which requires facilitation after examination of personal circumstances but does not itself confer a residence right on a durable partner.

The claimant, a Pakistani national, had been in a durable relationship with a Polish national from 2006 until March 2014. He received a residence card as an extended family member in September 2009.

His application for a permanent residence card was refused. The First-tier Tribunal allowed his appeal, holding that residence from March 2009 to March 2014 satisfied the five-year requirement in regulation 15(1)(b) of the Immigration (EEA) Regulations 2006.

The Secretary of State appealed. The issue was whether time spent in the durable relationship before the residence card was issued could be added to the later documented period to establish five years’ continuous residence in accordance with the Regulations.

1. Appeal allowed. The First-tier Tribunal made an error of law by treating the claimant’s pre-card period in a durable relationship as qualifying residence. Its decision was set aside and the claimant’s appeal was remade and dismissed.

2. Regulation 15(1)(b) requires five years’ continuous residence in accordance with the Immigration (EEA) Regulations 2006 as a family member of the EEA national. A partner in a durable relationship is an extended family member under regulation 8(5), rather than an ordinary family member within regulation 7(1)(a)–(c).

3. Under regulation 7(3), an extended family member is treated as a family member only once issued with an EEA family permit, registration certificate or residence card, and while the qualifying condition and documentation remain valid. The discretionary issue of a residence card under regulation 17(4) is therefore the point from which that person may have a right of residence and begin accruing qualifying time.

4. The residence card did not retrospectively confer a right of residence. The claimant could count only the period from September 2009 to March 2014, which was four years and six months. He did not establish a permanent right of residence.

5. The Tribunal applied Macastena v SSHD [2018] EWCA Civ 1558. It confirmed that the Directive distinguishes family members with derived residence rights from Article 3.2 persons, including durable partners, whose entry and residence must be facilitated after an extensive examination. The Directive did not require retrospective recognition of residence rights.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside and the claimant’s appeal under the Immigration (EEA) Regulations 2006 was dismissed.
• First-tier Tribunal: In a determination promulgated on 7 March 2018, Judge R E Barrowclough allowed the claimant’s appeal against refusal of a permanent residence card.