Time Spent As Extended Family Member Without Recognition Does Not Count
In Selim Macastena v SSHD  EWCA Civ 1558 the Court of Appeal considered whether the time spent in a durable relationship with a woman, who is an EEA national with permanent residence, can be added to the 5 year requirement of continuous residence in order to obtain permanent right of residence.
Mr Macastena is a Kosovan national and entered the UK unlawfully on 3 July 2005. He formed a relationship with a Polish national. They became engaged in December 2007 and went to Kosovo and married on 6 August 2008. He entered the UK with a family permit and then a residence card. On 30 July 2013 the couple divorced and Mr Macastena received a retained rights residence card. Subsequently Mr Macastena was convicted of unlawful wounding (section 20 OAPA). On 30 August 2013 he was sentenced to 24 months imprisonment.
A notice of intention to deport was served on 24 October 2013 and a deportation order signed on 13 August 2014. An appeal to the First Tier Tribunal was lodged and following a hearing FTT Judge S.J. Clark allowed the appeal. The SSHD appealed to the Upper Tribunal, this was dismissed and the SSHD appealed to the Court of Appeal.
“The question therefore is whether Mr Macastena had acquired such permanent right of residence at the time of the decision to deport him. If not, he will fall to be deported on grounds of public policy. If he had acquired such a right, he can only be deported on “serious grounds of public policy”, paragraph 5.
Arguments – Extended Family Member
Mr Macastena argued that before he married, he was an “extended family member” because he was in a durable relationship in accordance with the definition in Regulation 8(5) of the then applicable 2006 Regulations. It was relevant in this instance as he missed the 5 years’ continuous residence by 5 days. He therefore argued that he could only be deported or removed on “serious grounds of policy”, which he contended did not exist in his case. The First Tier Tribunal Judge accepted that Mr Macastena had acquired a right of permanent residence on this basis and therefore considered whether there were “serious grounds of public policy”.
The SSHD argued that the Regulations made clear that there was a discretion and a residence card would only be issued following an examination of personal circumstances.
Upper Tribunal Judge Coker decided that if the SSHD had not exercised discretion, the First Tier could and therefore the First Tier Tribunal Judge’s approach had been correct.
The Court concluded that if Mr Macastena had applied and been issued with a residence card as an extended family member it could have counted towards his permanent right of residence. No such application had been made. Mr Macastena argued that the SSHD knew of his durable relationship and therefore the period could be included in the calculation.
The Court concluded at paragraph 17: “That cannot be right. An extended family member can only be issued with a residence card on the basis of his durable relationship with an EEA national if the Secretary of State has undertaken “an extensive examination of the personal circumstances of the applicant”. That has never happened and can only happen after an application for a residence card is made. Merely notifying the Secretary of State that one is in a durable relationship is nowhere near enough either to constitute such extensive examination or to require such examination to be undertaken. FTT Judge Clark was with respect wrong to think that time spent in a durable relationship with Ms L could just be added to time spent as her spouse, provided that the First Tier Tribunal itself was satisfied that there had been a durable relationship before the marriage”.
The Court further concluded that it was not possible for the Tribunal to exercise the discretion conferred on the Secretary of State by regulation 17(4). The appeal was allowed but remitted to the Upper Tribunal to consider only Mr Macastena’s Article 8 rights outside of the Immigration Rules.
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