AIT 1. Neither the Citizens Directive (2004/38/EC) nor regulation 17(4) of the Immigration (European Economic Area) Regulations 2006 confers on an ‘other family member’ or ‘extended family member’ of an EEA national exercising Treaty rights a right to a residence card; consistent with the Directive, reg 17(4) makes it discretionary.
2. In deciding whether to issue a residence card to an extended family member of an EEA national under reg 17(4) the decision-maker should adopt a three-stage approach so as to:
(a) first determine whether the person concerned qualifies as an extended family member under reg 8 (in this case, to determine whether the appellant was ‘in a durable relationship’).
(b) next have regard, as rules of thumb only, to the criteria set out in comparable provisions of the Immigration Rules. To do so ensures the like treatment of extended family members of EEA and British nationals and so ensures compliance with the general principle of Community law prohibiting discrimination on the grounds of nationality. The foregoing means that for reg 17(4) purposes the comparable immigration rules cannot be used to define who are extended family members, but only to furnish rules of thumb as to what requirements they should normally be expected to meet. The fact that a person meets or does not meet the requirements of the relevant immigration rules cannot be treated as determinative of the question of whether a residence card should or should not be issued.
(c) ensure there has been an extensive examination of the personal circumstances of the applicant/appellant. It may be that in many cases such an examination will have been made in the course of assessing the applicant’s position vis a vis the immigration rules. But in principle the third stage is distinct, since the duty imposed by the Directive to undertake ‘an extensive examination of the personal circumstances . . ‘ necessitates a balancing of the relevant factors counting for and against the issuing of such a card. It would be contrary to Community law principles to base refusal solely on the fact that a person is an overstayer who falls foul, for example of para 295D(i): see by analogy Case C-459/99 MRAX v Belgian State [2002] ECR I-6591).
Assessment of a person’s individual circumstances done by reference to Article 8 of the ECHR, can form part (even a large part) of the requisite ‘extensive examination’, since: what matters is that there is a balanced consideration in the round. But it must be related to the exercise of reg 17(4) discretion: see MO (reg 17(4) EEA Regs) Iraq [2008] UKAIT 00061.
4. Regulation 17 is subject to the ‘public policy’ proviso in reg 20(1): see reg 17(8). If (but only if) the respondent invokes reg 20(1) can that constitute a proper basis for refusing to issue a residence card, irrespective of the position under reg 17(4).
[2008] UKAIT 00062
Bailii
England and Wales
Updated: 04 August 2021; Ref: scu.277828
