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Durable Partners of EU citizens & Derived Rights

On 16 October 2018, the Court of Appeal dealt with the potential limitations to rights of durable partner of EU citizens in the case of Secretary of State for the Home Department v Christy [2018] EWCA Civ 2378.

Background Facts

Ms Christy, a US national, came to Slovakia in order to work in Canadian Language School. While in Europe she met Mr Jones, they entered into a relationship in September 2011 and moved to Poland together. Mr Jones worked in a school, exercising his EU rights of free movement as a worker. Ms Christy had a right of residence under Poland’s domestic immigration rules; she had no need to seek to rely on any rights she might have as the durable partner of an EU citizen.

The main issue was whether Ms Christy had a derived right of “facilitation” as the durable partner of an EU citizen. This right means that the Home Office would have to consider Ms Christy’s application for a residence card as she is the durable partner of an EU citizen. The contention from the Home Office in this case was that Ms Christy was not in Poland as a durable partner, but in her own right. Therefore, it was argued that they did not have to consider her application in this way.

Relevant case law

Lord Justice Sales discussed the case law of O and B v Minister voor Immigratie, Integratie en Asiel ; [2014] QB 1163 (“O and B”) and Secretary of State for the Home Department v Banger, (“Banger”).

The Banger case extended the the Surinder Singh principles to include extended family members. It established that a durable partner of an EU citizen may in certain circumstances acquire a derived right of facilitation in respect of consideration of an application for a residence card in that citizen’s home Member State.

The distinction from Banger which the Secretary of State had sought to raise was that there was no need to consider or facilitate Ms Christy’s application under Banger as she had not been granted a right in the EU member state as the durable partner of an EU citizen. The reasoning given by the Secretary of State being that the case of O and B had imposed the limitation that Ms Christy would have had to have been in Poland as the durable partner of an EU citizen in order to rely on this right of facilitation.

Lord Justice Sales noted that Banger referred to the “attitude of the EU citizen” themselves in considering whether he will be able to return to his home Member State with his durable partner. He emphasised that “It cannot be thought that the attitude of the EU citizen would be any different, depending upon whether the person who became his durable partner happened to be residing with him in the relationship Member State as a result of exercising her right of facilitation under Article 3(2)(b) or (as in the present case) as a result of being in the relationship Member State by reason of being admitted to reside there under that state’s ordinary domestic immigration rules.

Lord Justice Sales also interpreted the judgement of O and B mean that what matters is whether the relevant rights of an EU citizen and his or her family member existed or not in the circumstances of the case, rather than whether they happen to have been exercised or not.

When considering Banger, Lord Justice Sales considered the the foundation for the derived right of facilitation was based upon the EU citizen’s right of free movement, and therefore the EU citizen should have the assurance that if he were to enter into a durable relationship he should be able to return to his home Member State. Lord Justice Sales stated that without this assurance “there will be an illegitimate impediment and obstacle to his own exercise of his free movement rights to leave the home Member State in the first place.”

The Decision

The Court chose not to limit or deny the derived right of facilitation as set out in Banger. The Court considered that it would be overall inconsistent with the CJEU’s rationale in Banger, to deny Ms Christy the derived right of facilitation. The Court considered that it would never have been intended by the CJEU for their rationale to be limited for arbitrary reasoning.

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