The claimant, a Liberian national, formed a relationship with a Czech national and they resided together in the United Kingdom since 2008. He was issued with a residence card in May 2013 and applied in February 2015 for a permanent residence card under regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006, which gave effect to article 16(2) of Parliament and Council Directive 2004/38/EC, having resided in the United Kingdom for a continuous period of five years as the “family member” of an EEA national. The Secretary of State refused the application for the reason that time only started to run on the issue of the residence card at which point he was a family member for the purposes of the 2006 Regulations with the consequence that he would not satisfy the five-year residence requirement until May 2018. In allowing the claimant’s appeal, the First-tier Tribunal (Immigration and Asylum Chamber) held that time did not commence from the issue of a residence card because article 25(1) of Directive 2004/38/EC gave European Union citizens and their family members, as defined by article 2(2) of the Directive and reflected in regulation 7(1)(a)–(c) of the Regulations, the right to reside and move freely within member states and that a residence card confirmed rather than granted status. That decision was upheld by the Upper Tribunal (Immigration and Asylum Chamber) on the Secretary of State’s appeal. The Secretary of State appealed therefrom, contending that the First-tier Tribunal had failed to distinguish between family members as defined in article 2(2) and extended family members and partners, described as “beneficiaries” under article 3(2) of the Directive, which was given effect by regulation 7(1)(d)(3) of the Regulations.
On the appeal—
Held, appeal allowed. It was clear from the wording of the relevant provisions and structure of Directive 2004/38/EC that extended family members as described in article 3(2) did not enjoy the same substantive rights of residence granted to a “family member” as defined by article 2(2). Article 3(2) merely imposed an obligation on a member state to facilitate an extended family member’s application, which was only a limited procedural right and distinct from the substantive rights of a family member under article 2(2). Therefore, the permanent right of residence of family members provided by article 16(2), and regulation 15(1)(b), was a right only conferred on family members as defined under article 2(2). An extended family member could only acquire that right under regulation 15(1)(b) upon residence with an EEA national in the United Kingdom for a continuous period of five years after issue of a residence card. Accordingly, both of the First-tier Tribunal and Upper Tribunal decisions would be set aside and the claimant’s appeal to the First-tier Tribunal against the Secretary of State’s original decision to refuse him a permanent residence card was dismissed (paras 23, 24, 31, 34, 39, 40, 41)
Secretary of State for the Home Department v Rahman (Case C-83/11) [2013] QB 249, ECJ applied.
Decision of Upper Tribunal (Immigration and Asylum Chamber) reversed.
William Irwin (instructed by the Treasury Solicitor) for the Secretary of State.
Ramby de Mello (instructed by JM Wilson Solicitors, Birmingham) for the Liberian national.