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Kunwar (EFM – calculating periods of residence) [2019] UKUT 63 (IAC)

Posted by Admin on May 31, 2019

Calculating periods of residence for EEA extended family members

This appeal took place in the Upper Tribunal (Immigration and Asylum Chamber) on 06/11/18 before Upper Tribunal Judge Grubb. The case considered the proper calculation of periods of residence for extended family members of EEA nationals seeking confirmation of their entitlement to permanent residence in the UK.

Brief facts and chronology

 The Claimant was in a durable relationship with an EEA national from Poland. It was not disputed that their relationship began in September 2006 or that they began living together in January 2007.

The Claimant was issued with a residence card as an “extended family member” in September 2009 and the couple’s relationship continued until it broke down in March 2014, when the EEA national returned to Poland.

The Claimant sought to argue that as he had been in a durable relationship in the UK in accordance with the 2006 Regulations (as amended by the Immigration (EEA) Regulations 2016 (SI 2016/1052), for a continuous period of five years between March 2009 and March 2014, he was therefore entitled to a permanent residence document.

The First-tier Tribunal (Immigration and Asylum Chamber) accepted this and the Claimant’s appeal was allowed.

The Secretary of State was given permission to challenge the decision of the First-tier Tribunal arguing that whilst the timelines for the Claimant’s relationship were accepted, he could not rely upon his durable relationship prior to having been issued with the residence card in September 2009.

Decision by the Upper Tribunal

The court reiterated the distinction between family and extended family members and their rights and entitlements. Only “family members” as defined by the relevant regulations had a right of residence and could, therefore, ‘clock up’ a period of five years’ continuous residence in order to acquire a permanent right of residence before a residence card was issued.

The court sited SSHD v Rahman and Others (Case C-83/11) [2013] Imm AR 1, in which the Court of Justice of the European Union (CJEU) concluded that  Member States did not have to accord a right of entry or residence to those “extended or other family members” or those in a “durable relationship” with EU nationals. Rather, the CJEU recognised that the Directive imposed an obligation to “facilitate entry and residence” following the undertaking of an “extensive examination of the personal circumstances” of “other family members.”

Extended family members, like the Claimant, could only acquire a right of residence in the UK when issued with a residence card. As such the Claimant could only rely on the period from September 2009 and could not demonstrate continuous residence for 5 years.

The First-tier tribunal had erred in law in finding that the Claimant had established the required period of residence and was entitled to a permanent residence card. That decision was set aside the Upper Tribunal dismissed the Claimant’s appeal.

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