The recent case of Macastena deals with the correct approach to attempts to rely on status as an extended family member under EU law.

The case concerned a foreign criminal who was seeking to be regarded as having obtained permanent residence. This is important because foreign criminals with ordinary rights of residence can be deported “on grounds of public policy or security”; if, however, they have a permanent right of residence they can only be deported on “serious grounds of public policy or security”.

Mr Macastena was granted a five-year EEA family permit on the basis of his marriage to an EEA national but before he acquired permanent residence, he was convicted and sentenced to two years in prison. Since time in prison breaks the continuous residence required to obtain permanent residence, a decision was made to deport Mr Macastena on grounds of public policy/security. However, Mr Macastena argued that he was in a durable relationship with the EEA national before their marriage and therefore he could be classified as an ‘extended family member’, which would mean he acquired permanent residence.

The Court of Appeal held that, for the purpose of qualifying for permanent residence, time spent in a durable relationship with an EEA national (as an extended family member) cannot be added to subsequent time spent as a spouse (direct family member) for the purpose of qualifying for permanent residence – unless the Secretary of State for the Home Department has acknowledged the status of the extended family member and issued the person with a residence card. This is because extended family members can only be recognised as such after an “extensive examination” of their application – if no such application is made, a person cannot rely on status as an extended family member.