(1) An “extended family member” (“EFM”) of an EEA national exercising Treaty rights in the UK (such as a person in a durable relationship) has no right to reside in the UK under the Immigration (EEA) Regulations until he or she is issued with the relevant residence documentation under reg 17(4) of the 2006 Regulations (now reg 18(4) of the 2016 Regulations).
(2) Following Macastena v SSHD  EWCA Civ 1558, it is clear that it is not possible to aggregate time spent in a durable relationship before the grant of a residence document with time spent after a residence document is issued, for the purpose of the calculating residence in accordance with the Regulations.
(3) Once such a document is issued however, then the EFM is “treated as a family member” of the EEA national and may then have a right to reside under the Regulations (reg 7(3)).
(4) Consequently, a person in a “durable relationship” with an EEA national can only be said to be residing in the UK “in accordance with” the Regulations once a residence document is issued. Only periods of residence following the issue of the documentation can, therefore, count towards establishing a ‘permanent right of residence;’ under reg 15 based upon 5 years’ continuous residence “in accordance with” the Regulations.
(5) The scheme of the 2006 and 2016 Regulations in respect of EFMs is consistent with the Citizens’ Directive (Directive 2004/38/EC). The Directive does not confer a right of residence on an individual falling within Art 3.2 including a person in a “durable relationship, duly attested” with an EU national but only imposes an obligation to “facilitate entry and residence” following the undertaking of an “extensive examination of the personal circumstances” of individuals falling within Art 3.2.