Secretary of State for the Home Department v Christy

A third-country national in a duly attested durable relationship with an EU citizen may have a derived right of facilitation in the citizen’s home Member State where the citizen has exercised free-movement rights by working in another Member State and returns with the partner.

The right arises by analogy with Article 3(2)(b) of Directive 2004/38/EC. It does not depend on the partner previously invoking Article 3(2)(b) or obtaining an immigration decision under it, where residence was lawful under ordinary domestic rules. National discretion concerns factors relevant to the application, not the existence of the right. Where no application under Article 3(2) was needed, the absence of such a decision cannot be treated as a relevant factor.

The respondent, a United States national, formed a durable relationship with a British citizen while they were living in Poland. The British citizen had exercised Treaty free-movement rights there as a worker. The respondent later returned with him to the United Kingdom and sought a residence card.

The First-tier Tribunal ordered reconsideration of her case. The Upper Tribunal dismissed the Secretary of State’s appeal on 9 December 2016. Following the CJEU’s judgment in Banger, the Secretary of State sought to amend his grounds of appeal. The central issue was whether a durable partner must have obtained facilitation under Article 3(2) in the relationship Member State before acquiring a derived right of facilitation in the home Member State.

Sales LJ, with Sharp LJ and Underhill LJ agreeing, granted permission to amend the grounds of appeal but dismissed the appeal.

1. Derived right of facilitation. Article 21(1) of the Treaty, interpreted in the light of the CJEU’s judgment in Banger, requires the home Member State to facilitate consideration of an application by a third-country national who is the duly attested durable partner of an EU citizen. This applies where the EU citizen has exercised free-movement rights by working in another Member State in accordance with Directive 2004/38/EC and returns with the partner.
2. The right is not conditional on the durable partner having invoked Article 3(2)(b) in the relationship Member State or having obtained a residence document based on that provision. The rationale is the need to prevent an obstacle to the EU citizen’s exercise of free movement. The reasoning in O and B concerning genuine residence focuses principally on the EU citizen’s rights. Its references to family-member rights under Articles 7(2) and 16(2) provide an a fortiori analysis and do not qualify the general foundation of the derived right.
3. The right of facilitation is distinct from, and conceptually prior to, any substantive decision to grant entry or residence. Article 3(2), applied by analogy, requires an extensive examination of the applicant’s personal circumstances and the conferment of an advantage over ordinary third-country applications. The phrase requiring action in accordance with national legislation gives discretion over factors relevant to the application, but not discretion to deny the existence of the derived right.
4. A previous refusal of an Article 3(2) application in the relationship Member State might potentially be a relevant, non-determinative factor. However, where no such application was needed or made, the absence of an Article 3(2) decision gives no assistance in assessing the relationship or the application for a UK residence card and cannot properly be made a relevant policy factor.

The Secretary of State was required to reconsider the respondent’s application, taking the derived right of facilitation into account. The Court did not determine whether a residence card should ultimately be issued.

1. Court of Appeal (Civil Division): permission to amend the grounds was granted and the appeal was dismissed. The Secretary of State was required to reconsider the residence-card application.
2. Upper Tribunal, Immigration and Asylum Chamber: the Secretary of State’s appeal was dismissed on 9 December 2016.
3. First-tier Tribunal: the respondent’s appeal succeeded to the extent that her case was remitted to the Secretary of State for consideration of whether a residence card should be issued in the exercise of discretion on 30 August 2016.