Upper Tribunal Was Wrong When Itself Exercising Discretion Conferred On SSHD

12 Jul 2018, 02 mins ago

In the recent case of SSHD v Macastena [2018] EWCA Civ 1558, the Court of Appeal held that time spent in a durable relationship with an EEA national cannot be added to the subsequent time required to be spent as a spouse of the same EEA national for the purpose of qualifying for permanent residence, unless the Secretary of State for the Home Department (“SSHD”) has acknowledged the status of the extended family member and issued the person with a residence card under the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). In addition the court held that neither the First-Tier Tribunal (“FTT”) nor the Upper Tribunal (“UT”) was in a position to exercise discretion conferred on the SSHD, or assume the discretion as having been exercised, if the SSHD had not exercised her or his discretion in the first place.

The case concerned a foreign criminal who was seeking to be regarded as having obtained permanent residence so that he could be subject to a different deportation regime. There are different deportation regimes in operation for EEA nationals depending on whether or not they have permanent residence. Those who do not have permanent residence can be deported on grounds of public policy or public security, whereas the stricter test of serious grounds of public policy or public security has to be satisfied for those who do have permanent residence before a decision to deport can be made.

Any decision to effect deportation on grounds of public policy or public security must be based on the conduct of the individual concerned. The fact that the person had previous convictions is not sufficient per se to justify deportation. The person must present a sufficiently serious threat to one of the fundamental interests of society, which may include the threat of a violent crime. Other factors must be taken into account such as the nature of the offence, the extent to which the person poses a danger to society, and the length and legality of time spent in the UK. The list is not exhaustive.

The threshold for serious grounds of public policy and public security is even higher. In the case of Straszewski v SSHD [2015] EWCA Civ 1245, the court stopped short of giving guidance, as any decision to deport on serious public policy grounds would normally involve examining the relevant facts of the case as well as matters referred to in the Free Movement Directive (2004/38/EC). The SSHD must interpret regulations against the background of the right of free movement and any derogation must be interpreted strictly. Even if a deportation is prima facie justified on serious grounds of public security, the decision-maker must consider whether any similar offending would be likely.

Going back to our case, the respondent had been granted a 5-year EEA family permit on the basis of his marriage to an EEA national before being involved in a road rage incident which resulted in injuries to the other party. The respondent was convicted and sentenced to 2 years in prison, which resulted in the SSHD seeking his deportation. Since the respondent’s time in prison interrupted the continuous residence required for the qualifying period to obtain permanent residence, he ended up being 5 days off having the full 5 years at the time that he began his prison sentence.

This meant the SSHD could apply the less strict test of public policy or public security to effect his deportation. In attempting to avoid the less strict test being applied to his situation, the respondent argued that before marrying the EEA national he had been in a durable relationship with her, and that for this reason he could be classified as an ‘extended family member’ within the meaning of the 2006 Regulations. That was the case, argued the respondent, despite the fact that he had entered the UK unlawfully and had made no formal application to SSHD to recognise the durable relationship. The respondent contended that this enabled him to acquire permanent residence on the basis of the 5-year lawful residence, and that therefore the more strict test of serious grounds of public policy or public security would be applicable in his case.

The SSHD disagreed by arguing that unlike full family members, extended family members had only an entitlement, as opposed to the right (which would be available to full family members) to require the SSHD to exercise their discretion, and that the SSHD had to “undertake an extensive examination of the personal circumstances of the applicant” before that discretion could be exercised and a residence card issued.

Affirming the FTT’s decision, the UT ruled against the SSHD and held that the FTT was right to exercise itself the discretion conferred on the SSHD, if the SSHD had failed to do so, or, alternatively, that the SSHD could be treated as having exercised their discretion negatively on the respondent, as evidence of the respondent’s durable relationship was available to the SSHD when he was applying for a residence permit, but it was not considered by the SSHD at the time.

Allowing the SSHD’s appeal, the Court of Appeal held that if the respondent had applied and been granted a residence card on the basis of his durable relationship with the EEA national in question, then it might well have been that the time of the durable relationship could have counted towards the overall qualifying period required for the purpose of obtaining permanent residence. However, that application was never made in the case of the respondent, and although the SSHD had been aware of the relationship between the respondent and the EEA national in question for other reasons before issuing him with a residence card as a spouse, the mere awareness of any possible durable relationship was not sufficient for satisfying the requirement to undertake “an extensive examination of the personal circumstances of the applicant”.

The court held that the UT was wrong to hold as it did, and that there was no duty on the SSHD to take into account the fact that the respondent could have applied for a residence card at the time of his durable relationship, resulting in his entitlement to have his personal circumstances extensively examined, following which a residence card might have been issued to him. Consistent with the use of the present tense in the two applicable regulations, this meant that the status of extended family member could not be decided retrospectively.

Finally, the court ruled that a tribunal was not entitled to exercise the discretion conferred on the SSHD by the relevant EEA regulation, if the SSHD had not been asked to exercise this discretion. Moreover, the tribunal was not entitled to assume that the discretion had implicitly been exercised and then to treat the discretion as having been exercised on an incorrect basis. If there were to be any error in law on the part of the SSHD, the tribunal could remit the case for redetermination. However, it was not open to the tribunal to exercise the discretion itself in the absence of the original discretion having been exercised by the SSHD.

Although the time spent in a durable relationship with an EEA national before becoming a spouse of that EEA national may count towards the overall time required for obtaining permanent residence, the relevant application had to be made at the time to enable the SSHD to examine the circumstances and exercise her or his discretion accordingly. It is not open to a tribunal to itself exercise the discretion conferred to the SSHD under the relevant regulation, if no request was made to the SSHD to exercise the discretion in the first place.

Gherson has extensive experience in dealing with various EEA applications. If you need assistance or wish to receive more information, please do not hesitate to contact us.


The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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