(Court of Appeal; Laws, Hooper and Toulson LJJ; 31 March 2009)
A homosexual Brazilian man, in the UK with leave to remain as a student, entered into a committed relationship with an Italian man. The two eventually lived together, and their relationship was registered in the London Partner's Register. On the basis of this relationship the adjudicator considered it appropriate to grant the Brazilian leave to remain in the UK for a further 3 years, and such leave was granted. Unfortunately, at the end of the 3-year period the couple separated. Only after the separation did the Brazilian make a further application for leave to remain; this was refused. On appeal the Brazilian man argued that under EU legislation he had acquired a 'right to permanent residence' arising from his relationship with a European Area national, as a 'family member' of a citizen of the European Union.
During the currency of his durable relationship with a citizen of the European Union, the Brazilian clearly could have applied to the Secretary of State for a residence card or generally for rights of residence under EU law, and had such an application been made during the currency of the relationship, the Secretary of State would have been required to undertake a substantial examination of the applicant's personal circumstances and to decide in terms of Immigration (European Economic Area) Regulations 2006, reg 17(4)(b) whether 'in all the circumstances it appears appropriate to the Secretary of State to issue the residence card'. However, the Brazilian had not made such an application while the relationship existed. By the time he did make his application he had no rights under EU law, or under the 2006 Regulations, because by then he was no longer an extended family member. The Brazilian's potential or putative rights, which could have been made good during the durable relationship, did not give rise as a matter of law to a duty on the Secretary of State, to take the historic fact of those putative rights into account after the relationship was over.