England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM
[AIT No. IA/15391/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		31sr March 2009

Lord Justice Laws:

1. This is an appeal with permission granted by myself on 29 October 2008 against the decision of the Asylum and Immigration Tribunal (the "AIT"), Senior Immigration Judge Latter, dated 1 July 2008, by which he dismissed the appellant's appeal against a refusal by the Secretary of State on 11 July 2007 to grant him further leave to remain in the United Kingdom. The AIT's determination was arrived at on a reconsideration ordered by the High Court on 18 January 2008, the appeal having originally been dismissed by Immigration Judge Talbot on 22 October 2007.
2. The appellant is a Brazilian national. He is homosexual. In September 1995 he left Brazil for Portugal to study music at the National Conservatoire. He remained in Portugal for some two-and-a-half years and came to the United Kingdom in February 1998 as a visitor. He obtained further leave to remain as a student. In November 1999 he met an Italian man, to whom I may refer as Domenico, with whom he entered into a committed relationship. They lived together from early 2003. In April 2004 their relationship was to be registered in the London Partners' Register. This was before the statutory recognition of civil partnerships. On 29 April 2003 an asylum application was made on the appellant's behalf, but it is suggested that this was an error of some kind since the appellant asserts he never intended to claim asylum but only wished to remain in the United Kingdom with his partner.
3. At all events, the application was refused on 7 May 2003. The appellant appealed but only on the ground that, by force of article 8 of the European Convention on Human Rights, he should be allowed to remain in the United Kingdom with Domenico. That appeal was allowed by the adjudicator on 4 November 2003. The adjudicator stated that it would be appropriate to grant discretionary leave to remain to the appellant for a period of three years and such leave was indeed granted on 26 January 2004 to expire on 17 January 2007. However, in January 2007 the appellant and Domenico separated. The appellant made a further application for leave to remain but that was refused by the Secretary of State on 11 July 2007. The appellant appealed. His case before the immigration judge was that he enjoyed a retained right of residence under paragraph 10(5)(d) of the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"), which implemented in the United Kingdom the provisions of Directive 2004/3AD/C of the European Parliament and Council on the Right of Citizens of the European Union and their Family Members to Move and Reside Freely within the Territory of the Member States (the Directive).
4. The appellant's case was that he had acquired a right to permanent residence arising from his durable relationship with his former partner, Domenico, who was an EA national. Immigration Judge Talbot, dismissing the appeal on 7 November 2007, held that the appellant had acquired no such right. The appellant applied for a reconsideration which was at length ordered by Burton J on 18 January 2008 and so, as I have said, the matter went before Senior Immigration Judge Latter. He confirmed Immigration Judge Talbot's decision. I should note that he was not asked to consider any claim based on article 8 of the Human Rights Convention. Before coming to Senior Immigration Judge Latter's decision, it is convenient to set out or summarise the material terms of the Directive and Regulations. First, the Directive. The sixth recital is in these terms:

"In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen."

5. Article 2(2):

"Family member" means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;"

I may break off there and go to article three. Article 3(1):

"This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them."

Article 3(2):

"Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons: …

(b) a partner with whom the Union citizen has a durable relationship, duly attested."

"The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people."

6. Then articles 6 to 7 confer rights of residence on Union citizens and their family members as defined in article 2(2) subject to certain conditions. No such rights of residence are conferred on non-family members. Article 10(1) provides that the right of residence of family members is to be evidenced by the issue of a document called a residence card. It is contemplated that a right of residence may be conferred on a partner in a durable relationship within article 3(2)(b) because article 10(2)(f) refers to such a case. The drafting is perhaps anomalous or loose because article 10, on its face, applies to family members, and one would presume only family members; but clearly there is an extended application in article 10(2)(f) because a person within the article 3(2)(b) category is not a family member. Article 11 requires that a residence card be valid for five years. Article 13 is cross-headed "retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership". In such cases, the retention of the right is made subject to strict conditions. Article 25 provides that possession of a residence document "may under no circumstances be made a precondition for the exercise of the right".
7. I turn to the regulations. Regulation 7 defines 'family member'. The primary category is that of spouse or civil partner, but the definition also includes at 7(3):

"a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked."

Regulation 8 is cross-headed extended family member. 8(1) provides:

"In these Regulations "extended family member" means a person who is not a family
member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in
paragraph (2), (3), (4) or (5)."

Then I may go to 8(5). A person satisfies the condition in this paragraph:

"If a person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national."

8. Article 13 of the Directive is implemented by regulation 10. It is clear that regulation 10 runs no wider than article 13 itself. Regulation 17(4) confers a discretion on the Secretary of State to issue a residence card to an extended family member, subject to certain qualifications. 17(6) provides that such a residence card will be valid for five years, the same period, of course, as is stipulated in article 11 of the Directive. It is common ground that the appellant was in a durable relationship, within the meaning of article 3(2)(b) of the Directive and paragraph 8(5) of the Regulations, until January 2007 when he and Domenico separated. It is also common ground that the durable relationship came to an end at that time. The core of Senior Immigration Judge Latter's reasoning is to be found at paragraph 17 to 18 of the determination as follows:

"17. It follows from these provisions that the appellant does not fall within the definition of a family member within reg 7 as he did not enter into a civil partnership with his former partner. Article 2(2)(b) of the Directive makes it clear that the partnership must be a registered partnership on the basis of the legislation of a member state. The appellant's partnership was a voluntary one even if registered in the London Partnership Register. The appellant is able to show that he was in a durable relationship with his partner, an EEA national, within the provisions of reg 10 because he is not a person who has ceased to be a family member of a qualified person on the termination of the civil partnership. Whist the relationship was subsisting the appellant might have been able to apply for a registration certificate as an extended family member under the provisions of reg 16(5) or for a residence card under reg 17(4) but in both cases the Secretary of State must consider whether it is appropriate in all the circumstances to issue the relevant document.

18. For these reasons I am satisfied that the judge did not materially err in law by holding that the appellant could not bring himself within the provisions relating to the retention of rights of residence. They do not apply to the termination of a durable relationship. I am not satisfied that it is arguable that the 2006 Regulations do not properly bring into effect the provisions of the Directive. Article 13 relates to the retention of rights by family members in the event of divorce, annulment or termination of a registered partnership and has been put into effect by reg 10. The appellant and his partner did not enter into a civil partnership following the coming into force of the Civil Partnership Act on 5 December 2005."

9. Mr Anderson QC, for the appellant, accepts (see his skeleton argument, paragraph 35) -- and it was confirmed this morning -- that the appellant does not, as such, enjoy any retained rights of residence such as might be confirmed by article 13 or regulation 10 upon a person whose marriage or registered civil partnership has come to an end. He accepts that those provisions do not apply on the facts to his client's case. The case that Mr Anderson makes is based primarily, even if not, as we shall see, directly, on article 3(2)(b) of the Directive. It is submitted that the appellant might have applied for a residence card during the currency of the durable relationship pursuant to regulation 17(4) and was entitled, during that period, to have his residence facilitated, his personality circumstances extensively examined, and his residence denied only on justified grounds. So much is provided for by article 3(2)(b). Any such right of residence would have endured for five years and, says Mr Anderson, the effect of article 25 is to provide that the article 3(2) rights are not to be made conditional on a residence card. That is a matter to which he attaches some importance.
10. Those submissions, with respect, are correct as far as they go. During the currency of his durable relationship the appellant clearly might have approached the Secretary of State, asked for a residence card, or indeed asked generally for rights of residence under the community regime; and, had such an application been made, whatever, I venture to think, its words or precise terms, the Secretary of State would then have been required to undertake a substantial examination of the appellant's personal circumstances and to decide in terms of Regulation 17(4)(b) whether:

"In all the circumstances it appears appropriate to the Secretary of State to issue the residence card."

11. Although, as Mr Anderson submitted, the regulations are framed so as to make substantial procedural use of the requirement for a residence card, the substance of the application that might have been made by the appellant while he was with Domenico was for his case to be considered under the community regime and, in that context, the residence card is evidence, not constitutive, of the rights that the regime administers. But Mr Anderson further submits that the appellant was effectively entitled to the benefit of the article 3(2)(b) exercise in the events which actually happened here -- that is to say, in relation to his application for residence made in 2007 after the termination of his durable relationship. In his skeleton argument it was submitted that, as a person who might have applied for a residence permit while his relationship with Domenico endured, he was, at the time of the Secretary of State's refusal of further leave on 11 July 2007, in a closely comparable position with that of an ex-civil partner and should have been treated in a comparable way. Moreover, it was further submitted that by failing to conclude that the appellant's presumed entitlement to residence, had he applied for it before January 2007, should have been reflected in the Secretary of State's decision of July 2007, Senior Immigration Judge Latter was, in effect, making possession of a residence card a pre-condition for the exercise of substantive article 3 rights, and that is prohibited by article 25.
12. In his submissions this morning, however, Mr Anderson advanced his argument in a somewhat more nuanced fashion. He accepted that a person in a durable relationship becomes eligible for the rights conferred by the Directive only while those rights subsist according to the Directive's terms. However, he says, one of those rights is expressed in such a way as not to be dependent on the continuance of the relationship. That is the right to five years' residence, the period stipulated in article 11 and reflected in the regulations. That right subsists unless precluded by something in the appellant's individual circumstances. Mr Anderson says it may not be denied on the basis that there was no application for a residence card. The consequence of this, as I understood his submission, is that, come July 2007, when the Secretary of State is considering the application made after termination of the relationship, at the least the Secretary of State was not entitled to ignore the putative right which the appellant had during the currency of the relationship, which, had it been recognised, would have still subsisted -- I note again the five year period -- at the time the Secretary of State was considering the matter. It was not entirely clear at all points during the course of the argument whether Mr Anderson was submitting that his client actually enjoyed a right of residence derived from his durable relationship which should have been recognised by the Secretary of State in July 2007. My understanding was that the claim he made did not reach that far. He put it on the footing that, since this was a right at the very least available to the appellant before the end of the relationship and not dependent on the administrative act of the issue of a residence card, it must have been a factor -- and I apprehend he would say powerful factor -- for the Secretary of State to consider, when deciding, as a matter of discretion, whether to extend his leave to remain in July 2007.
13. This argument, subtle and elegant though it was, seems to me in the end to fail. In July 2007 the appellant had no rights under the Directive nor under the regulations. It is obvious, but important, that article 3(2)(b) and regulation 8(5) are both expressed in the present tense. By July 2007 the appellant clearly had no entitlement to be considered for residence as an extended family member as such, for at that time he did not possess that status. In my judgment, the Secretary of State was simply not required in July of that year to undertake the article 3(2)(b) exercise. Article 25 does not, I think, advance the position, for it assumes the existence of a right of residence. It does not itself confer any such right. I do not accept that the appellant's potential or putative rights, that could have been made good during the durable relationship, give rise as a matter of law to a duty after that relationship was over upon the shoulders of the Secretary of State to address the historic fact of those putative rights in making her discretionary decision in July 2007. The true reach of the appellant's right during the durable relationship, as it seems to me, was to have a claim for residence considered, and considered, of course, strictly in accordance with the terms of the community regime.
14. But that right falls in, as it were, only if the appellant were to ask for it to be done. He did not. In all those circumstances, it seems to me that Ms Demitriou in her skeleton argument was right to submit in a sentence that the appellant falls entirely outside the scope of the directive. Mr Anderson has a secondary submission that the court should order a reference to the Court of Justice under article 324 of the EU Treaty. For my part, I fear, with respect to him, I would conclude that there is nothing here to refer. It is, in my view, clear that the claim he seeks to advance is not one that is contemplated by the community legislation. For all those reasons, I would dismiss the appeal.

Lord Justice Hooper:

15. I agree.

Lord Justice Toulson:

16. I also agree.

Order: Appeal dismissed