Introduction

The case of Macastena v. Secretary of State for the Home Department ([2019] 1 WLR 365) adjudicated by the England and Wales Court of Appeal (Civil Division) on July 5, 2018, addresses a pivotal issue in immigration law. The core question revolves around whether the duration of a durable relationship with an EEA (European Economic Area) national can be aggregated with the time spent as a spouse to fulfill the five-year continuous lawful residence requirement necessary for acquiring permanent residence in the United Kingdom. This case holds significant implications, particularly for foreign nationals with criminal backgrounds, by delineating the boundaries of residence rights and deportation grounds under the Immigration (European Economic Area) Regulations 2006.

The appellant, Mr. Macastena, a Kosovan national, entered the UK unlawfully and later entered into a durable relationship and subsequent marriage with Ms. L, a Polish EEA national. Following their marriage, Mr. Macastena obtained residence status but was later convicted of unlawful wounding, prompting the Secretary of State to initiate deportation proceedings. The legal contention centers on whether the time spent in a durable relationship prior to marriage should contribute to his continuous residence period.

Summary of the Judgment

The Court of Appeal examined whether Mr. Macastena's period in a durable relationship with Ms. L could be counted towards the five-year continuous lawful residence requirement for permanent residence. The court concluded that such time cannot be aggregated unless Mr. Macastena was issued a residence card as an "extended family member" under the 2006 Regulations. Since Mr. Macastena did not apply for or receive such a residence card during his durable relationship, the time spent therein could not be added to his subsequent lawful residence as a spouse.

Consequently, Mr. Macastena did not meet the five-year continuous lawful residence threshold by a narrow margin of five days. This meant that his deportation was permissible on grounds of public policy rather than the more stringent "serious grounds of public policy or security" required for individuals with permanent residence. The Court ultimately allowed the appeal, remitting the case for further consideration of Mr. Macastena's Article 8 rights and the de minimis non curat lex principle concerning the slight shortfall in residence duration.

Analysis

Precedents Cited

The judgment extensively referenced and relied upon previous cases to shape its reasoning:

• CS (Brazil) v SSHD [2009] EWCA Civ 480; This case clarified the obligations of the Secretary of State under regulations pertaining to extended family members. It was instrumental in establishing that the mere existence of a durable relationship does not automatically confer permanent residence rights unless a formal residence card is issued following an extensive examination of personal circumstances.
• Aladeselu v SSHD [2013] EWCA Civ 144; This case reinforced the principle that being an extended family member does not inherently guarantee a substantive right to residence. Instead, it underscores the discretionary power of the Secretary of State to grant residence cards upon thorough evaluation.
• Rahman v SSHD [2013] QB 249; The Court of Justice of the European Union (CJEU) decision in Rahman emphasized the necessity for host Member States to facilitate residence for partners in durable relationships through comprehensive personal assessments, aligning national legislation with the Citizens Directive.

Legal Reasoning

The court's legal reasoning was grounded in the interpretation of the Immigration (EEA) Regulations 2006, particularly focusing on the definitions and requirements for "family members" and "extended family members." The pivotal regulation was:

• Regulation 15(1): Defines the acquisition of permanent right of residence after five years of continuous residence either as an EEA national or as a family member residing with an EEA national.
• Regulation 8(5): Outlines the criteria for being considered an "extended family member," which includes partners in durable relationships, subject to proving the durability of said relationship.
• Regulation 17(4) and (5): Dictate the discretionary power of the Secretary of State to issue residence cards to extended family members, contingent upon an extensive examination of personal circumstances.

The court determined that Mr. Macastena's time in a durable relationship could not be retroactively included in his lawful residence period because he did not formally apply for or receive a residence card as an extended family member during that time. The absence of such an application meant that the criteria set forth in Regulations 17(4) and (5) were not fulfilled, precluding the addition of durable relationship time to his marriage-based residence period.

Moreover, the judgment highlighted that the Secretary of State must actively exercise discretion in issuing residence cards for extended family members, and without such action, the appellant's durable relationship does not confer an automatic or assumable right to permanent residence.

Impact

This judgment has profound implications for immigration law, particularly concerning:

• Clarification of Residence Rights: It delineates the boundaries between family members and extended family members, emphasizing the necessity of formal processes to substantiate durable relationships.
• Deportation Grounds: By establishing that only time granted through formal residence status counts towards permanent residence, it narrows the avenues through which deportation can be challenged, especially for individuals with criminal convictions.
• Administrative Discretion: It underscores the critical role of the Secretary of State in exercising discretionary powers and the limitations thereof, reinforcing procedural correctness in immigration decisions.
• Future Litigations: Sets a precedent that durable relationships alone, without formal recognition through residence cards, do not suffice for aggregating residence periods, thereby guiding future cases involving similar circumstances.

The ruling puts a spotlight on the importance of timely and formal immigration applications for those in extended family relationships, urging applicants to proactively seek residence recognition to safeguard their residency status.

Complex Concepts Simplified

The judgment incorporates several intricate legal terminologies and concepts. Here's a breakdown to facilitate better understanding:

• Extended Family Member: Pertains to individuals in durable relationships with EEA nationals, not categorized as immediate family (e.g., spouse, parent). Eligibility for residence requires proving the durability of the relationship and undergoing a thorough personal assessment.
• Durable Relationship: A relationship characterized by stability, longevity, and mutual commitment, akin to a marital union, even if not formalized through marriage.
• Permanent Right of Residence: A status granted after five years of continuous lawful residence, conferring long-term residency rights without the need for periodic renewals.
• Regulation 17(4) and (5): Legal provisions granting the Secretary of State discretionary power to issue residence cards to extended family members, necessitating extensive scrutiny of the applicant's personal situation.
• Article 8 Rights: Under the European Convention on Human Rights, these rights protect an individual's right to respect for private and family life, which can be invoked in immigration and deportation cases.
• De Minimis Non Curat Lex: A Latin legal principle meaning "the law does not concern itself with trifles," applicable here to argue that minor shortfalls in meeting legal requirements should not result in severe penalties like deportation.

Understanding these concepts is crucial for comprehending the nuances of immigration law and the specific legal arguments presented in the case.

Conclusion

The Macastena v. Secretary of State for the Home Department case serves as a definitive reference point in UK immigration law, particularly concerning the rights of individuals in durable relationships with EEA nationals. By ruling that time spent in a durable relationship cannot be automatically added to lawful residence periods without formal residence recognition, the court has set a clear precedent emphasizing the necessity of adhering to procedural requirements for residence status. This judgment reinforces the importance of proactive immigration applications and clarifies the scope of administrative discretion in residency and deportation matters. For legal practitioners and foreign nationals alike, this case underscores the critical interplay between personal relationships and formal immigration processes in establishing and maintaining residency rights within the United Kingdom.