ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LADY JUSTICE KING DBE
THE RIGHT HONOURABLE LORD JUSTICE COULSON
| SELIM MACASTENA
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Manjit Gill QC (instructed by Bankfield Heath Solicitors) for the Respondent
Hearing dates: 19th June 2018
Crown Copyright ©
Lord Justice Longmore:
"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."
Mr Macastena therefore contends that he can only be deported or removed on serious grounds of policy which, he says, do not exist.
"(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if –
a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and
b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.
(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national sec urity."
Grounds of Appeal
1) his predecessor was correct to consider Mr Macastena's position only as from 5th September 2008 because it was only as from that date that Mr Macastena's lawful residence began as the spouse of Ms L. Before that date he was not lawfully resident in the United K ingdom because he was not a "family member"; his residence as an "extended family member" in a durable relationship with Ms L was not lawful residence, unless the Secretary of State had been asked to exercise her discretion to issue a residence card pursuant to regulation 17(4) and that discretion had been exercised in his favour; that had never happened. FTT Judge Clark was therefore wrong to hold that time spent in a durable relationship before marriage could, as a matter of law, be added to the time of Mr Macastena's marriage to achieve the 5 year requirement for a permanent right of residence;
2) moreover, even the Secretary of State could only determine any application while Mr Macastena was in a durable relationship, not at some later date;
3) UT Judge Coker was wrong to decide that the Secretary of State had implicitly exercised her discretion adversely to Mr Macastena, let alone to decide that she had exercised that discretion on wrong principles, let alone that the Upper Tribunal was entitled to exercise discretion itself in favour of Mr Macastena; similarly, if the right interpretation of the FTT judgment was that Judge Clark had exercised a discretion, the FTT was not entitled to do so; and
4) if the tribunal were entitled to exercise their own discretion, that discretion was wrongly exercised because neither tribunal "undertook an extensive examination of the personal circumstances of the applicant" as required by regulation 17(5).
Circumstances in which a durable relationship can be taken into account for purposes of acquiring a permanent right of residence
"In July 2008 the appellant had no rights under the Directive nor under the Regulations. It is obvious, but important, that article 3(2)(b) [of the Directive] and reg 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 art 3(b) exercise
… 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… "
"a partner with whom the Union citizen has a durable relation, duly attested"
and that the Secretary of State did not facilitate such residence if he ignored the durable relationship which Mr Macastena had with Ms L.
"It should be emphasised that a finding that an applicant comes within reg 8 does not confer on him any substantive right to residence in the UK. Whether to grant a residence card is a matter for decision by the Secretary of State in the exercise of a broad discretion under reg 17(4), subject to the procedural requirements in reg 17(5). All this is underlined by the observations of the court in Rahman as to the nature of the host Member State's obligations under Art 3(2) of the Directive (see para  above). In the present case, as the Upper Tribunal noted, the Secretary of State has yet to consider the applicants' cases pursuant to reg 17(4) and (5)."
Can the tribunal exercise a discretion when the Secretary of State has not?
Lady Justice King:
Lord Justice Coulson: