Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/22116/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 5 October 2016
On 31 October 2016

Before

Upper Tribunal Judge Southern

Between

M S
(anonymity direction MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P. Plowright, counsel
For the Respondent: Mr S. Whitwell, Senior Home Office Presenting Officer

DECISION
1. The question of law that is to be addressed in this appeal is concerned with the different positions of family members and Extended Family Members ("EFMs") within the legal framework applicable to an application for a residence card confirming a right of residence in the United Kingdom. In the light of the recent reported decision of Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC), a question arises also as to the jurisdiction of the Tribunal to entertain this appeal by a former durable partner of an EEA national against refusal to issue her with a residence card. It is convenient to address the question of the Tribunal's jurisdiction after considering the legal framework relating to the differing positions under European law of family members and EFMs of EEA nationals.
2. On 24 April 2007 the appellant, who is a citizen of Brazil, was issued with a residence card on the basis that the respondent accepted that she was, at that time, in a durable relationship with [NA], who was an EEA national exercising Treaty rights in the United Kingdom. That relationship ended a little less than two years later, on 15 February 2009, when the appellant left the home they had been sharing. She did not inform the respondent of that change in her circumstances.
3. In April 2012 the appellant submitted an application for a residence card on the basis that she was entitled to a retained right of residence because her relationship had broken down because of domestic violence and, as five years had elapsed since she was issued with her residence card as the durable partner of an EEA national, during which she claimed to be living in the United Kingdom in accordance with the EEA regs, she claimed to be entitled to a permanent right of residence and so a residence card recognising that entitlement.
4. In these proceedings the appellant appeals against a decision of the respondent, made on 30 April 2014, to maintain an earlier decision to refuse to issue to her a residence card, permission to appeal having been granted in respect of the decision of First-tier Tribunal Judge Dineen who, by a determination promulgated on 8 January 2016, dismissed the appellant's appeal. At the initial hearing before the Upper Tribunal before Deputy Upper Tribunal Judge Froom, it was common ground and agreed between the parties that the First-tier Tribunal Judge had made a material error of law such as to require that his decision be set aside and remade by the Upper Tribunal.
5. The litigation history leading to the decision now under challenge is, of course, well known to the parties, as is the previous history of the relationship between the appellant and [NA] and it is not necessary to recite here all of the details of that history.
6. The reasoning that led the respondent to refuse the application may be summarised as follows:
a. Reg 7(3) of the EEA regs confirms that a person issued with a residence card as an Extended Family Member ("EFM") shall be treated as a family member of an EEA national but only for as long as she continues to meet the definition of an EFM in reg 8;
b. EFMs do not enjoy the same automatic right to live and work in the United Kingdom under European law as do family members of an EEA national;
c. When the appellant ceased to cohabit with her former partner, leaving their home on 15 February 2009, she was no longer treated as a family member;
d. Therefore, the appellant's "qualifying period" is only two years and so she cannot demonstrate having lived in the United Kingdom in accordance with the EEA regs for a continuous period of five years;
e. Although reg 10(5) provides for retained rights of residence where there has been domestic violence, this is available only to family members and is not available to EFMs who cease to be treated as family members when the durable relationship comes to an end;
f. In any event, the respondent did not accept that the appellant had been "a consistent victim of domestic violence".
7. The case advanced on the appellant's behalf by Mr Plowright, distilled to its essence, may be summarised as follows. Although he accepts that reg 10(5)(d)(iv) of the EEA regs and Article 13(2) of the Citizen's Directive 2004/38/EC ("the Directive") provide specifically for retained rights of residence for the spouse or civil partner (i.e. the family member) of an EEA national but not for a former durable partner (i.e. an EFM) who has been the victim of domestic violence, Article 13(2) ought to be read to include durable partners in accordance with "the European principles of equal treatment and proportionality: As para 289A and Appendix FM DVILR of the Immigration Rules provide for the unmarried partner of a British citizen to be granted settlement if the relationship broke down because of domestic violence, therefore unmarried partners of EEA nationals ought to be entitled to the same advantage. In support of that submission Mr Plowright draws upon what was said at para 30 of Netherlands v Ann Florence Reed [1986] EUECJ R-59/85:
"? Article 7 of the Treaty, in conjunction with Article 48 of the Treaty and Article 7(2) of regulation No 1612/68, must be interpreted as meaning that a member state which permits the unmarried companions of its nationals, who are not themselves nationals of that member state, to reside in its territory cannot refuse to grant the same advantage to migrant workers who are nationals of other member states."
Therefore, in Mr Plowright's submission, because unmarried partners of British nationals who have been the victims of domestic violence are entitled to settlement, unmarried partners of EEA nationals ought to be entitled to the same advantage as that afforded to the unmarried companions of British nationals.
8. Further, Mr Plowright draws from Article 52 of the Charter of Fundamental Rights of the European Union ("the Charter") a principle of proportionality such as to demand that the United Kingdom should not apply the Directive or the EEA regs to a former durable partner in a way that limits the rights and freedoms of the former durable partner in a way that is not necessary and does not genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedom of others. Article 52 provides:
"Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others."
9. The respondent's position is as set out in a skeleton argument drafted by Mr Peter Deller, which was adopted by Mr Whitwell. The respondent points to the clear distinction drawn between family members and EFMs in European law and submits that there is no legitimate comparison between provisions for retaining a right of residence under the Directive and domestic United Kingdom provisions in the Immigration Rules for partners following the breakdown of a relationship following domestic violence. The respondent's position is that EU law is simply not engaged in relation to non-EEA EFMs beyond the requirement of Article 3(2) of the Directive. Put another way, in Mr Whitwell's submission, the status of a non-EEA national, who is not a family member of the EEA national and, following the breakdown of a formerly durable relationship, is no longer an EFM either, falls outside the scope of EU law.
10. The respondent submits that the asserted analogy between a right of residence under the EEA regs and leave to enter or remain under the Immigration Rules is misconceived. It is correct that para 289A applies to both married and unmarried couples but the Immigration Rule applies stricter criteria for leave to enter or remain than provided for by reg 8(5).
The legal framework
11. In order to inform the discussion that follows, it is necessary to set out a recital of the relevant material.
12. The relevant provisions of the Directive 2004/38/EC are Articles 2, 3, 7(2) and 13:
'Article 2
Definitions
For the purposes of this Directive:
(1) 'Union citizen' means any person having the nationality of a Member State;
(2) 'Family member' means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);
(3) 'Host Member State' means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence."
Article 3
Beneficiaries
1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
Article 13
Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership
1. Without prejudice to the second subparagraph, divorce, annulment of the Union citizen's marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.
Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).
2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or
(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen's children; or
(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or
(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.
Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively on a personal basis.'
13. Next, the EEA regs. Reg 8 is concerned with EFMs. So far as is relevant it provides:
"Extended family member
8.- (1) In these Regulations "extended family member" means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).
?
(5) A person satisfies the condition in this paragraph if the 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.
(6) In these Regulations "relevant EEA national" means, in relation to an extended family member, the EEA national who is ? the partner of the extended family member for the purposes of paragraph (5).
14. Reg 7 is concerned with family members, included within such definition are spouses and civil partners but reg 7(3) provides:
? a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulations 8(2),(3),(4) (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.
15. Reg 10 provides for retained rights of residence for family members:
10. - (1) In these Regulations, "family member who has retained the right of residence" means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), (4) or (5).
?
(5) A person satisfies the conditions in this paragraph if-
(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c) he satisfies the condition in paragraph (6); and
(d) either-
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;
(iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or
(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.
(6) The condition in this paragraph is that the person-
(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a).
16. Reg 15
15. - (1) The following persons shall acquire the right to reside in the United Kingdom permanently-
?
(f) a person who-
(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained the right of residence.
17. Before carrying out an analysis of those competing submissions there is a matter of fact in issue between the parties to be resolved. As we have seen from the summary of the reasons for refusal set out above, the respondent did not accept that the appellant was "a consistent victim of domestic violence" and so on that basis alone she could not benefit from the provisions of reg 10(5)(d)(iv). At the hearing the appellant herself gave oral evidence of what she claimed to amount to the domestic violence she suffered at the hands of her former partner. She called two witnesses also although they added very little indeed to the case she sought to make out.
18. In her oral evidence the appellant gave a clear, convincing and demonstrably truthful account of the difficulties that she had encountered during a difficult and somewhat turbulent relationship with [NA]. The couple first entered into a relationship as long ago as 2001 but they separated after just six months after which he returned to his previous partner. The relationship was subsequently resumed and they lived together between 2003 and 2007, although the appellant made regular visits to Brazil, which punctuated the continuity of that period of cohabitation. During that period the appellant described her partner as an extremely jealous person who would be verbally aggressive towards her, accusing her of flirting with other men and of acting like a prostitute and of having affairs with other men, none of which, the appellant said, was true or remotely justifiable. The appellant described how [NA] would frequently grab her arms, sometimes with sufficient force to cause bruising and would push her against a wall while shouting at her. On one such occasion her arm was cut as she was pushed against a wall socket.
19. In July 2007, just three months after the residence card was issued to her, she returned to Brazil and while staying there with her family [NA] contacted her and her relatives repeatedly by telephone or text messages making offensive and untruthful allegations of inappropriate behaviour by the appellant. He told the appellant that he would send someone to kill her while she was in Brazil and said that because she bore a physical resemblance to her sister it may be that her sister would be killed instead. The appellant returned to the United Kingdom in August 2007 and reported to the police the difficulties she had been experiencing. No charges followed but a police report confirms both that the appellant made such a complaint and that as a result [NA] was offered advice by police.
20. Despite all that, and despite having been advised by the police not to have any further contact with [NA], the appellant did subsequently resume the relationship but it finally ended on 15 February 2009 when, following a meal at a restaurant with a man sharing their accommodation, [NA] accused her of flirting with him and, once in their room, he grabbed her by the neck, tore her clothes, shouted at her and was generally aggressive and abusive. The following morning the appellant left their home and recognised that the relationship had finally come to an end.
21. In cross examination Mr Whitwell identified some inconsistencies or contradictions in the evidence that the appellant had given about all of this but none of that undermines the cogency of her account, which I accept to be true. I have no hesitation in finding as a fact that the appellant was consistently throughout the relationship a victim of domestic violence.
22. However, that is not a complete answer to the question posed by reg 10(5). It must be recognised that the test to be applied under reg 10(5) is not the same as that under paragraph 289A of the Immigration rules. What has to be established to succeed under para 289A as a victim of domestic violence is that the appellant:
"Is able to produce evidence to establish that the relationship was caused to permanently break down ? as a result of domestic violence"
whereas what has to be demonstrated under reg 10(5) is that:
"the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting."
Three things may be noted about those two provisions:
(i) a family member seeking to retain a right of residence following the end of a relationship with an EEA national does not need to demonstrate, as is the case under the Immigration rules, that it was domestic violence that caused the relationship to permanently break down, simply that because of being a victim of domestic violence, a continued right of residence is warranted, despite the end of the relationship upon the basis of which a residence card was issued;
(ii) although under the rules no exercise of discretion is called for on the part of the respondent because once the applicant has met the requirements of the rule leave will be granted, the position under reg 10(5) is very different because it is not enough for the applicant to establish that she has been a victim of domestic violence. In order to succeed, the applicant must satisfy the respondent that the nature of the domestic violence has been such as to amount to particularly difficult circumstances such as to warrant a continued right of residence. That calls for a judgement to be made by the respondent. The applicant who established that she has been the victim of domestic violence has no entitlement to a continued right of residence;
(iii) reg 10(5)(d)(iv) provides for the possibility of a retained right of residence following domestic violence only where it has arisen during the subsistence of a marriage or civil partnership. That this is not extended to those who have been in a durable relationship is notable.
The appellant's position under the EEA regs.
23. It is not in dispute between the parties that the EEA regs, on their face, do not enable the appellant to succeed in her application for a residence card, now that she is no longer in a durable relationship with [NA]. That is because the position is as described by the respondent in refusing the application. The appellant is an EFM only while the durable relationship subsists. Regulation 8(5) is expressed in the present tense:
'A person satisfies the condition in this paragraph if the 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.'
Similarly, reg 7(3) reinforces the point that the benefits flowing from being in a durable relationship with an EEA national are available only during the currency of that relationship (the emphasis is mine):
'? a person who is an extended family member and has been issued with ? a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5)?'
As discussed above, it is unambiguously clear from the terms of reg 10 that non EEA nationals who were formerly in a durable partnership with an EEA national were intended to be excluded from eligibility for retained rights of residence where that relationship ended before a qualifying period of five years had elapsed. That is made clear both by the final phrase of reg 10(5)(d)(iv):
'the continued right of residence in the United Kingdom of the person is warrented by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.'
and by the fact that each of the other routes to qualification for a retained right of residence set out in reg 10(5) are specifically limited to family members who acquired that status as a result of marriage or a civil partnership.
24. As we have seen, Mr Plowright submits that the respondent should not have simply applied the EEA regs, which could lead only to the conclusion that the appellant had no retained right of residence and so did not qualify for a permanent residence card, but should have had regard to the Directive and the Charter of Fundamental Rights of the European Union and concluded that Article 13(2)(c) ought to be read to include durable partners. For the reasons that follow, I am satisfied that Mr Plowright's argument cannot succeed.
25. There is a stark contrast between the approach taken in the Directive to family members and to EFMs. Indeed, in the vocabulary of the Directive such persons are not family members at all but "beneficiaries". It can be seen that such persons are "beneficiaries" because providing that benefit facilitates the rights of free movement guaranteed to EEA nationals. Beneficiaries do not derive any rights independent of the EEA national, unlike family members who have, in their own right, an entitlement to free movement and residence in the host member state where their EEA national relative is exercising Treaty rights.
26. It can be seen from the recitals to the Directive that this sharp distinction between spouses and civil partners (family members) on the one hand and durable partners (beneficiaries) was unambiguously intentional. Recital 5 explains that:
'The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality?'
While recital 6 makes clear that those who are in a durable relationship but who do not qualify as family members are to be treated differently:
'In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to deicide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.'
27. That distinction between family members and EFMs is echoed in the Articles of the Directive. The distinction is emphasised by the exclusion of durable partners from the definition of family members set out in Article 2. Article 3 makes clear that the admission of "beneficiaries" or EFMs is a matter for the domestic law of Member States and that it is not a right derived from European law. For the avoidance of any possible doubt, Article 3 opens with a reiteration of the rights enjoyed by EEA nationals and their family members, as defined in Article 2, after which there is provision for Member States to "facilitate" entry and residence of, inter alia, "the partner with whom the Union citizen has a durable relationship, duly attested". Article 3 concludes by saying:
'The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.'
Once again, this demonstrates that "these people" do not enjoy any right of entry or residence under the terms of the Directive, simply a right to have their application examined and to be provided with clear reasons for any refusal of entry or residence.
28. In the light of this analysis of the Directive, it is entirely unsurprising that Article 13, which provides for retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of a registered partnership is inapplicable to those who have been, but are no longer, in a durable relationship with an EEA national. There is, therefore, no provision in the Directive that enables the appellant to retain a right of residence following the end of her relationship with [NA] and there is no reason at all to read into Article 13 such a provision as its exclusion was precisely what was intended.
29. The arguments advanced by Mr Plowright in support of such a submission do not survive scrutiny. The appellant cannot draw upon the Charter of Fundamental Rights as an aid to interpretation of the Directive because that has already been factored in. Recital 31 states:
'This Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union?'
In any event, there is nothing in that Charter that assists the appellant in constructing any rights not specifically made available by the Directive. Article 45 of the Charter states:
'Freedom of movement and of residence
1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States.
2. Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State.'
It is the EEA regs, implementing the provisions of the Directive, that determine the basis upon which the appellant is lawfully present in the United Kingdom on the basis of her relationship with an EEA national.
30. Mr Plowright placed reliance upon the decision of the Court of Justice in Netherlands v Ann Florence Reed, a decision that is now of some vintage, having been made some twenty years ago. That decision makes clear (see for example paragraph 26) that the "rights" being considered were those of the EEA national seeking to exercise his right of freedom of movement and not those of his "unmarried companion" as a durable partner was described. The decision begins by stating:
"Article 10(1) of regulation no 1612/68 cannot be interpreted as meaning that the companion, in a stable relationship, of a worker who is a national of a member state and is employed in the territory of another member state must in certain circumstances be treated as his "spouse" for the purposes of that provision.
The possibility for a migrant worker of obtaining permission for his unmarried companion to reside with him, where that companion is not a national of the host member state, can assist his integration in the host state and thus contribute to the achievement of freedom of movement for workers. Consequently, that possibility must be regarded as falling within the concept of a social advantage for the purposes of Article 7(2) of regulation no 1612/68. It must therefore be conceded that a member state which grants such an advantage to its own nationals cannot refuse to grant it to workers who are nationals of other member states without being guilty of discrimination on grounds of nationality, contrary to Articles 7 and 48 of the Treaty."
However, it will be seen from this that the "social advantage" is that of the EEA national and not his unmarried companion. Its purpose is to ensure that the rights of the EEA national are not impeded. Thus, once the relationship has ended, there is no social advantage for European law to preserve. In any event, [NA] has secured precisely that which was in issue in Ann Florence Reed, which was the facilitation of the residence of his unmarried partner while that relationship subsisted.
31. All of this chimes with the respondent's submission that EU law is not engaged in relation to EFMs beyond the obligations set out in Article 3(2) of the Directive, which obligations are clearly discharged by the United Kingdom in implementing the Directive in the EEA regs: see also SSHD v Rahman and others Case no C-83/11.
32. Nor, in my judgment, is there any merit in the submission founded upon analogy with para 289A of the Immigration Rules. That is because these are two wholly different regimes which cannot be equated. An applicant for indefinite leave to remain pursuant to para 298A has already met the significantly more demanding criteria of the rules in securing leave to enter or remain. There is no reason why a person present in the United Kingdom having been granted a residence card on the basis of a durable partnership that has come to an end should have the benefit of para 298A while being excused the need to meet also the requirements for the initial grant of leave under paras 282 or 295 of the Immigration Rules.
33. For these reasons, the decision to refuse the application for a residence card, however framed, was correctly and lawfully refused. The applicant did not have any retained right of residence and so her application for a permanent residence card was bound to be refused. If considered as an application for a residence card as an EFM it was also bound to fail as the appellant no longer met the requirements of reg 8.
Does the Tribunal have jurisdiction to entertain an appeal by an EFM?
34. In the recently reported case of Sala ( EFMs: Right of Appeal ) [2016] UKUT 411 (IAC) the Upper Tribunal decided that there is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. In this appeal the appellant claims to be someone who is entitled to be treated as if she were a family member because she had been granted a residence card as an EFM and applied for a permanent residence card under reg 18 of the EEA Regs. However, as the respondent did not accept, correctly, that the appellant had access to any retained right of residence under reg 10, she treated the application as one being made by someone claiming to be an EFM for a residence card and refused it on the basis that she was no longer in a durable relationship with an EEA national. Therefore, on at least one view, the case falls within the ambit of Sala and I must explain why, despite that, I am satisfied that the appellant does have a statutory right of appeal.
35. The reasoning that led the panel in Sala to the conclusion that an EFM has no right of appeal against refusal to grant a residence card may be summarised as follows.
a. First, the tribunal recognised the distinction between the position of family members and EFMs. Family members have a right of residence regardless of whether a residence card is issued. Where a residence card is issued that is simply in recognition of a right of residence that arises under European law. Conversely, no right of residence arises for EFMs. An application having been made, the respondent has a discretion under reg 17(4) as to whether or not to issue a residence card. It is the issue of the card that creates the right of residence. (para 19);
b. Once a residence card has been issued to an EFM she will be treated as a family member but only while she continues to satisfy the conditions of reg 8 which resulted in her being accepted to be an EFM. (para 24);
c. Family members derive their right of residence from the Directive and so from EU law whereas EFMs derive rights of admission and residence from the procedural right to have their applications determined following the extensive examination of their personal circumstances demanded by reg 17(5) and an exercise of discretion in their favour by the SSHD. (para 26);
d. Rights of appeal are set out in reg 26. An appeal lies against an EEA decision. An EEA decision is defined by reg 2(1) as follows:
"'EEA decision' means a decision under these Regulations that concerns -
(a) a person's entitlement to be admitted to the United Kingdom;
(b) a person's entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card;
(c) a person's removal from the United Kingdom; or
(d) the cancellation, pursuant to regulation 20A, of a person's right to reside in the United Kingdom; but does not include decisions under regulations 24AA (human rights considerations and interim orders to suspend removal) or 29AA (temporary admission in order to submit case in person); ..."
e. At para 36 the Tribunal said that, as a consequence, whether the appellant, who sought a residence card as a durable partner, had a right of appeal depends upon there being first a decision made under the EEA regs and second that the decision concerns a person's entitlement to be issued with a residence card.
f. Whereas a family member who satisfies the requirements of reg 7 has an entitlement to be issued with a residence card, a durable partner, having met the requirements of reg 8(5) must rely upon an exercise of discretion in her favour by the respondent under reg 17(5). This exercise of discretion "sits between" meeting the requirements of reg 8(5) and the outcome of whether or not a residence card is issued. Therefore, this cannot properly be regarded as an entitlement. The only entitlement is that discretion is exercised lawfully in accordance with the Directive. (para 46);
g. As the decision under challenge did not concern a person's entitlement to a residence card it was not therefore an EEA decision and so there was no right of appeal available.
36. A major difficulty with this reasoning was presented by reg 26(2A), which was introduced by way of an amendment to reg 26 in November 2012. This provides that:
'(2A) If a person claims to be in a durable relationship with an EEA national he may not appeal under these Regulations unless he produces -
(a) a passport; and
(b) either -
(i) an EEA permit; or
(ii) sufficient evidence to satisfy the Secretary of State that he is in a relationship with an EEA national.'
Why would Parliament have inserted into the EEA regs a limitation on a right of appeal if it did not exist? The Tribunal considered that it was not necessary to address this concern because of the legal principle that an amendment cannot be had regard to in order to interpret the meaning of the regulations as originally enacted. (para 64). In any event, the Tribunal considered that the purpose in making this amendment to the regs was unclear. (para 72)
37. A difficulty with the approach taken by the Tribunal in Sala is illustrated by reg 10(5). This appellant is a durable partner and so treated as a family member only for as long as she continues to be in a durable relationship and holds a valid residence card. However, if an applicant is a spouse, and so a family member pursuant to Article 2 of the Directive and reg 7 of the EEA regs, she retains the status of a family member after the marital relationship has broken down and cohabitation has ended. She may seek a retained right of residence as a victim of domestic violence under reg 10(5)(d)(iv). As we have seen, such a retained right of residence is not an entitlement but something that will be provided if the respondent considers that the domestic violence that has occurred is such to amount to particularly difficult circumstances such as to warrant a continued right of residence. If the approach taken in Sala is correct, that would mean that the spouse, who remains a family member, would have no right of appeal.
38. It is, though, in regulation 26(3)(b)(iii) that we find a further answer to the question of jurisdiction in this appeal:
'(3) If a person to whom paragraph (2) does not apply [i.e. a non-EEA national] claims to be a family member who has retained the right of residence or the family member or relative of an EEA national he may not appeal under these Regulations unless he produces-
(a) ... a passport; and
(b) either-
(i) an EEA family permit;
(ia) a qualifying EEA State residence card;
(ii) proof that he is the family member or relative of an EEA national; or
(iii) in the case of a person claiming to be a family member who has retained the right of residence, proof that he was a family member of the relevant person.'
This appellant is a person who claims to be a family member even though plainly she is not, following the end of the durable relationship. But she has the most cogent of proof that she was a family member, or at least treated as one, as she was previously issued with a residence card. It has to be recognised that reg 26(3) is not as drafted in the original version of the regulations but as the qualifying criteria now found in reg 26(3)(b)(iii) was contained within the regulation as originally drafted, that is of no account. This means that although this appellant has no entitlement to either a retained right of residence or to a permanent right of residence, she does have a statutory appeal against the respondent's decision.
Summary of conclusions
39. The appellant, having been issued with a residence card as the durable partner of an EEA national exercising Treaty rights in the United Kingdom was treated as a family member while she continued to satisfy the conditions of reg 8(5). When the relationship came to an end on 15 February 2015 she ceased to satisfy the conditions of reg 8(5) and so ceased to be treated as a family member.
40. Although a right of residence arises from the issue to an EFM of a residence card, that right does not continue for the term of the card if the relationship comes to an end. That is because the qualifying criteria of reg 8(1) and (5) is expressed in the present tense, as is reg 7(3) so that once a person ceased to satisfy the conditions in reg 8(5) he or she ceases to be both an EFM and to be treated as a family member. That is why the EFM is told, on issue of the residence card, that he must report to the respondent any change of the circumstances that led to qualification for its issue.
41. There is no provision for retained rights of residence for durable partners following breakdown of the relationship. Reg 10(5)(d)(iv) provides for retained rights of residence following domestic violence but only for those formally in a marriage or civil partnership with an EEA national.
42. There is no reason to justify the "reading in" to Article 13 of the Directive of a provision extending its reach to those who were formerly in a durable partnership that has come to an end.
43. Although, therefore, this was an application that was bound to fail, the appellant does have a right of appeal under reg 26(3)(b)(3) because she is a person who claims to be a family member who had retained a right of residence (even though she is not) and has provided proof that she was the family member (being treated as such pursuant to reg 7(3)) of an EEA national.
Summary of decision:
44. The Judge of the First-tier Tribunal made a material error of law error of law and his decision is set aside.
45. The Upper Tribunal substitutes a fresh decision to dismiss the appellant's appeal.

Signed
Upper Tribunal Judge Southern

Date: 13 October 2016