Damandeep Singh v The Secretary of State for the Home Department

A durable relationship under article 3(2)(b) of Directive 2004/38 must remain extant. Once the relationship ends, the non-EEA partner ceases to be a beneficiary and the member state has no continuing duty to facilitate entry or residence. Article 13, which protects certain rights following divorce, annulment or termination of a registered partnership, cannot be extended by interpretation to former durable partners. The Directive deliberately distinguishes married or civil partners from other beneficiaries. EU law requires applications by durable partners to be facilitated, but that right does not include a right to remain after the relationship has ended. The differential treatment of married and unmarried partners was not shown to be impermissible discrimination.

The appellant, an Indian national, had held a residence card as the extended family member of an EEA national with whom he was in a durable relationship. The relationship ended on 5 August 2017 following domestic violence. He applied in April 2019 for confirmation of a retained right of residence under regulation 10 of the Immigration (European Economic Area) Regulations 2016.

The respondent refused the application because the appellant had not been married to, or in a civil partnership with, his former partner. The First-tier Tribunal dismissed his appeal. The Upper Tribunal considered whether the preserved EU-law appeal rights applied, whether article 3(2)(b) continued to cover a former durable partner, whether article 13 protected him, and whether the distinction between married and unmarried partners was unlawfully discriminatory.

1. Applicable law. The appeal was preserved under paragraph 5(1)(b) of Schedule 3 to the EEA Transitional Regulations because it concerned an appeal brought before revocation of the EEA Regulations. The relevant EU-law rights therefore remained applicable.
2. Continuing durable relationship. Article 3(2)(b) is clear. The duty to facilitate entry and residence arises where the Union citizen has a duly attested durable relationship with the partner. An extant nexus with the EEA national is a continuing requirement. Once the relationship ends, the non-EEA national no longer falls within article 3(2)(b) and there is no continuing duty to facilitate entry or residence.
3. Retention after relationship breakdown. Article 13 cannot be read as extending to former durable partners. The Directive distinguishes family members under article 2 from other persons whose entry and residence are to be facilitated under article 3(2). Article 13(2) protects rights arising from marriage or registered partnership and contains a defined list of circumstances. Extending it to durable partners would conflict with the structure and wording of the Directive.
4. Discrimination and effectiveness. The Directive deliberately distinguishes married and unmarried partners. Nothing in the Directive or the CJEU authorities established that this differential treatment was impermissible. The EU-law right was a right to have an application facilitated, subject to effectiveness and general EU-law principles. Refusing continued residence to someone who was no longer a beneficiary did not render that right ineffective. The appeal was dismissed.

• First-tier Tribunal: Judge O’Malley dismissed the appellant’s appeal against the refusal of a residence card on 26 February 2020.
• Upper Tribunal: The First-tier Tribunal decision was set aside for error of law by Upper Tribunal Judge Rimington on 12 August 2020. On remaking the decision, the Upper Tribunal dismissed the appeal.