Introduction

The case of Kunwar v. Secretary of State for the Home Department ([2019] UKUT 63 (IAC)) represents a pivotal moment in the interpretation of residence periods for extended family members under the Immigration (EEA) Regulations. This case involves Muhammad Asif Saeed Kunwar, a Pakistani national, contending for permanent residence in the UK based on his durable relationship with an EEA national, Ms. Marlena Opara, a Polish citizen.

Kunwar's application for a permanent residence card was initially refused, leading him to appeal the decision. The primary legal issue centers on whether periods of residence prior to the issuance of a residence card as an extended family member can be aggregated with subsequent lawful residence periods to satisfy the five-year continuous residence requirement for permanent residency.

Summary of the Judgment

The Upper Tribunal, Immigration and Asylum Chamber, delivered a judgment overturning the First-tier Tribunal's decision in favor of Kunwar. The court held that Kunwar could not aggregate his residence period before being issued with a residence card with the period after the issuance to meet the five-year continuous residence requirement under Regulation 15(1)(b) of the 2006 Regulations (now Regulation 18(4) of the 2016 Regulations). Consequently, Kunwar's appeal was dismissed, and the decision to grant him permanent residency was set aside.

Analysis

Precedents Cited

The judgment heavily references key cases, notably Macastena v SSHD [2018] EWCA Civ 1558 and CS (Brazil) v SSHD [2009] EWCA Civ 480. In Macastena, the Court of Appeal clarified that residence periods prior to the issuance of a residence card as an extended family member cannot be aggregated with subsequent periods to qualify for permanent residency. Similarly, in CS (Brazil), the court reinforced that extended family members have no inherent right to residence until a residence card is formally granted, emphasizing that mere existence of a durable relationship does not automatically confer residency rights.

Legal Reasoning

Judge Grubb delineated a clear distinction between "family members" and "extended family members" as defined under the Immigration (EEA) Regulations. "Family members" inherently possess a right to reside in the UK while "extended family members" do not possess such rights until a residence card is issued under Regulation 17(4).

The crux of the legal reasoning lies in the interpretation of continuous residence. The court determined that Kunwar’s residence period before obtaining the residence card cannot be legally counted towards the five-year requirement for permanent residency. The issuance of the residence card is a discretionary act that establishes Kunwar as a "family member," thereby initiating the lawful residence period necessary for permanent residency.

The judgment also aligns with the principles enshrined in the Citizens' Directive (Directive 2004/38/EC), which mandates host Member States to facilitate entry and residence for "extended family members" only after an extensive examination of personal circumstances, not retroactively grant residence rights based on pre-existing relationships.

Impact

This judgment sets a significant precedent by clarifying that extended family members cannot bolster their residence periods before the formal recognition of their status through a residence card. It underscores the importance of timely application and issuance of residence documentation for extended family members seeking permanent residency.

For legal practitioners and EEA nationals, this decision emphasizes the necessity of adhering strictly to regulatory procedures when applying for residence documentation. It may also influence future litigation concerning the aggregation of residence periods, affirming that only periods post-recognition as "family members" are eligible for consideration.

Complex Concepts Simplified

Durable Relationship

A durable relationship refers to a long-term partnership akin to marriage, where the parties live together and present themselves as a committed couple. In immigration terms, it establishes the basis for extended family membership but does not, by itself, confer residency rights without formal documentation.

Family Member vs. Extended Family Member

• Family Member: Includes spouses, civil partners, dependent children, and dependent direct relatives. These individuals automatically have the right to reside in the UK when associated with an EEA national exercising Treaty rights.
• Extended Family Member: Encompasses partners in durable relationships and other family members not covered under the primary definition. They require a residence card to establish their right to reside in the UK.

Residence Card

A residence card is an official document issued under Regulation 17(4) that grants extended family members the legal right to reside in the UK. Its issuance is discretionary and contingent upon an extensive examination of the applicant's personal circumstances.

Continuous Residence

Continuous residence refers to an unbroken period during which an individual has legally resided in the UK. For permanent residency, a continuous period of five years is typically required, counted from the date of lawful residence as defined by the relevant regulations.

Conclusion

The Kunwar judgment is a landmark decision that clarifies the delineation between family members and extended family members within the context of UK immigration law. By affirming that only periods of residence following the issuance of a residence card can be counted towards permanent residency, the court reinforces the procedural prerequisites for extended family members seeking to cement their status in the UK.

This decision underscores the necessity for extended family members to proactively secure their residence documentation to benefit from continuous residence periods. It also aligns UK law with European Union directives, ensuring consistency in the interpretation and application of residence rights for family members across Member States.

For practitioners and affected individuals, the judgment serves as a critical reminder of the importance of timely and accurate compliance with immigration regulations to safeguard residency and eventual permanent settlement in the UK.