By virtue of the recent sentence Macastena v Secretary of State for the Home Department  EWCA Civ 1558 an interesting jurisprudential discussion has been put in place in relation to the rights of the extended family member of an EEA national. The difference between direct family members and extended family members consists now in their rights to be considered legitimately resident where they have not been issued a residence card. Substantially, the mere existence of a durable relationship with an EEA national is not a guarantee of issuance of a residence card and, therefore, an extended family member without a residence permit cannot count the time spent in this durable relationship (without valid permit) towards the 5 years - period required to get permanent residence rights.
The appellant became a family member of an EEA national when he married his Polish wife (in Kosovo) on 6 August 2008 but he did not start residing lawfully with his wife in the United Kingdom until 5 September 2008. Given that his case was launched on 30 August 2013, the Secretary of State established that he did not complete the 5 years period in order to be considered a qualified person for Permanent Residence.
Even though the appellant was an extended family member because as he was in a durable relationship, the Secretary of State argued that "durable relationship" does not correspond to having automatic right to reside.
If the appellant had been granted a residence card as an extended family member, the time spent in a durable relationship could have counted towards the accumulation of permanent residence.
The Court of appeal argued that an application for a residence permit as an extended family member implies “an extensive examination of the personal circumstances” of the applicant. Therefore, "Merely notifying the Secretary of State that one is in a durable relationship is nowhere near enough either to constitute such extensive examination or to require such examination to be undertaken".