CS (Brazil) v Secretary of State for the Home Department

Factual and Procedural Background

This is an appeal against the decision of the Asylum and Immigration Tribunal (AIT), where Senior Immigration Judge Latter dismissed the Appellant's appeal against the Secretary of State's refusal to grant further leave to remain in the United Kingdom. The appeal followed a reconsideration ordered by the High Court after an initial dismissal by Immigration Judge Talbot. The Appellant, a Brazilian national and homosexual, entered the UK as a visitor in 1998 and subsequently obtained leave to remain as a student. He entered into a durable relationship with an Italian national, referred to as the former partner, living together from early 2003 and registering their partnership in the London Partners' Register prior to statutory recognition of civil partnerships.

An asylum application made on the Appellant's behalf in 2003 was refused, but an appeal succeeded on the basis of article 8 of the European Convention on Human Rights, resulting in discretionary leave to remain granted until January 2007. Following the separation from the former partner in January 2007, the Appellant's subsequent application for leave was refused by the Secretary of State. The Appellant appealed, claiming a retained right of residence under the Immigration (European Economic Area) Regulations 2006, based on his durable relationship with the former partner, an EEA national. Both Immigration Judge Talbot and Senior Immigration Judge Latter dismissed the appeal, holding the Appellant had no such right.

Legal Issues Presented

1. Whether the Appellant, as a former durable partner of an EEA national, had acquired a right to permanent residence under the Immigration (European Economic Area) Regulations 2006 and Directive 2004/38/EC.
2. Whether the retention of rights of residence under article 13 of the Directive and regulation 10 of the 2006 Regulations applies to the termination of a durable relationship that is not a registered civil partnership.
3. Whether the Secretary of State was required to consider the Appellant’s putative or potential residence rights arising from the durable relationship when refusing further leave after the relationship ended.
4. Whether a reference to the Court of Justice of the European Union was appropriate under article 234 of the EU Treaty for clarification of the Directive’s application.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended he had acquired a right to permanent residence derived from his durable relationship with the former partner, an EEA national, under article 3(2)(b) of Directive 2004/38/EC and corresponding provisions of the 2006 Regulations.
• He argued that during the subsistence of the durable relationship, he could have applied for a residence card and enjoyed facilitated entry and residence rights, which should have enduring effect beyond the relationship’s termination.
• The Appellant submitted that the Secretary of State’s refusal to recognize these rights after the relationship ended improperly made possession of a residence card a precondition, contrary to article 25 of the Directive.
• He further argued that the right to reside for five years, as stipulated in article 11 of the Directive, was not dependent on the continuance of the relationship or on the administrative issuance of a residence card.
• Finally, the Appellant requested a reference to the Court of Justice for interpretation of the Directive’s provisions concerning durable relationships.

Respondent's Arguments

• The Secretary of State maintained that the Appellant was not a family member as defined by regulation 7 because the partnership was not a registered civil partnership under member state legislation.
• The retention of rights under article 13 and regulation 10 applies only to spouses or registered civil partners, not to durable relationships without formal registration.
• The Secretary of State was not required to consider any residence rights after the termination of the durable relationship, as the Appellant no longer satisfied the conditions for extended family member status.
• The Secretary of State argued that article 25 presupposes the existence of a right of residence and does not itself confer any such right.
• It was submitted that the Appellant fell entirely outside the scope of the Directive’s protections once the relationship ended and no reference to the Court of Justice was warranted.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed the Directive 2004/38/EC and the Immigration (European Economic Area) Regulations 2006, focusing on the definitions and rights conferred to family members and extended family members, particularly under articles 2, 3, 6, 7, 10, 11, 13, and 25 of the Directive and regulations 7, 8, 10, 16, and 17 of the Regulations.

The court noted that the Appellant’s relationship, though durable and registered in a local partnership register, did not constitute a registered civil partnership as required by article 2(2)(b) of the Directive and regulation 7 of the 2006 Regulations. Therefore, the Appellant did not qualify as a family member entitled to retention rights under article 13 and regulation 10, which apply exclusively to spouses or registered civil partners.

It was acknowledged that while the durable relationship subsisted, the Appellant could have applied for a residence card under regulation 17(4), triggering an extensive examination of his personal circumstances and potential facilitation of residence rights under article 3(2)(b). However, these rights were contingent on the subsistence of the relationship, expressed in the present tense by the Directive and Regulations.

The court rejected the argument that the Appellant enjoyed a continuing right of residence after the relationship ended or that the Secretary of State was obliged to consider putative rights from the past relationship in the discretionary refusal of leave. Article 25 was interpreted as not creating rights but only regulating conditions for exercising existing rights.

Finally, the court found no basis for a reference to the Court of Justice, concluding that the community legislation clearly did not contemplate the claim advanced by the Appellant.

Holding and Implications

The appeal was dismissed.

The court’s decision confirms that durable relationships without formal registration as civil partnerships do not confer retained rights of residence under the relevant Directive and Regulations once the relationship ends. The Secretary of State is not required to consider putative rights arising during a terminated durable relationship when deciding on further leave to remain. This ruling directly affects the Appellant by upholding the refusal of leave but does not establish new precedent beyond the interpretation of the existing legislative framework.