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Court of Appeal rules on rights of residence for extended family members in EU law

DATE: 09 Jul 2018

The Court of Appeal (Longmore, King and Coulson LJJ) has handed down judgment in Secretary of State for the Home Department v. Macastena [2018] EWCA Civ 1558, an important case dealing with rights of residence under EU law. The case deals with the correct approach to attempts to rely on status as an extended family member under the Citizens Directive (Directive 2004/38).

Mr Macastena resided in the United Kingdom pursuant to a retained right of residence as the former spouse of an EU national. Following his conviction for a serious criminal offence, and the subsequent making of a deportation order against him, he tried to rely on the enhanced protection against expulsion available under the Citizens Directive for individuals with a permanent right of residence. Such individuals can only be expelled on “serious grounds of public policy or public security”. A permanent right of residence is only granted after five years’ residence in accordance with the terms of the Directive. The only way that Mr Macastena could achieve the required qualifying period of five years was to rely, for some of the required period, on a right to reside as an “other” family member (or “extended family member” under the domestic implementing regulations, the Immigration (European Economic Area) Regulations 2006, “the EEA Regs”). However, he had at no stage ever sought recognition of that right. The First-tier Tribunal and Upper Tribunal both ruled in his favour, holding that no such application was necessary and that they could exercise the discretion in reg. 17(4) of the EEA Regs to consider whether to grant such a right to reside.

The Court of Appeal allowed the Secretary of State’s appeal on all grounds. The  Court held, following CS (Brazil) v. Secretary of State for the Home Department [2010] INLR 146, that an extended family member could only be recognised as such after an “extensive examination” of an application for recognition as such. If no such application were made, a person could not rely on status as an extended family member. In such circumstances, it is not open to a tribunal to carry out the reg. 17(4) exercise in place of the Secretary of State.

A copy of the judgment can be found here.

David Blundell represented the Secretary of State.