Macastena v Secretary of State for the Home Department [2018] EWCA Civ 1558 highlights the difference between extended family members’ rights and family members’ rights under EU law, as well as the extent of the tribunal’s statutory remit.

Background to the case

The appellant is a Kosovan national who came to the UK illegally and married a Polish woman. Mr Macastena was granted a five-year EEA family permit in September 2009. In July 2013 he and his wife divorced but he received a new residence card as someone who retained a right of residence.

In August 2013 the appellant was sentenced to 24 months’ imprisonment for unlawful wounding. The Secretary of State decided to deport the appellant. The issue before the Court of Appeal was:

a foreign criminal who has acquired a right of residence under the 2006 Regulations can only be deported if the Secretary of State decides that his removal is “justified on grounds of public policy or public security …” pursuant to regulation 19(3). In respect of a person with a permanent right of residence there is a more stringent test. A decision to deport may not be made “… except on serious grounds of public policy or public security” (regulation 21(3)).

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”.

Mr Macastena became a family member of an EEA national when he married his Polish wife (in Kosovo) on 6 August 2008 but he did not start residing lawfully with his wife in the United Kingdom until 5 September 2008. Since he began his sentence on 30 August 2013, he missed five years’ continuous residence by the agonisingly small margin of five days.

His argument was that, before he married, he was an extended family member because he was in a durable relationship. That would mean he “had (or ought to be treated as if he had) a permanent right of residence” and the Secretary of State could only deport him on serious grounds of policy.

Time in durable relationship doesn’t count towards permanent resident if no residence permit issued

The Court of Appeal held that if Mr Macastena had applied for and been issued a residence card as an extended family member then time spent in a durable relationship could have counted towards the accumulation of permanent residence.

But the difference in issuing extended family members residence cards was of importance. The mere existence of the relationship with the extended family member does not lead to automatic issuance of a residence card.

For an extended family member to be issued with a residence permit the Secretary of State will undertake “an extensive examination of the personal circumstances” of the applicant. Mr Macastena did not make such an application thus had not been subject to an examination of his circumstances and therefore could not rely on time as an extended family member:

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.

Lord Justice Longmore highlighted that prior to the appellant’s marriage he was unlawfully present in the UK and therefore was no automatic presumption of status could be assumed.

Can the tribunal exercise a discretion when the Secretary of State hasn’t?

The last issue that the court considered was whether the tribunal the jurisdiction to exercise a discretion when the Secretary of State has not. The Upper Tribunal had decided that even if the Secretary of State had not exercised his discretion in granting a residence permit to Mr Macastena, the First-tier Tribunal could do so in allowing the appeal initially.

Longmore LJ held that the tribunal cannot exercise such a discretion. If the Secretary of State exercises his discretion on a legally unsound basis, the tribunal can determine that there has been an error of law and remit for a decision to be taken on the legally correct basis. But there first has to be an exercise by the Secretary of State of his discretion.