The UK Court of Appeal has declared that the non-EEA partner of a UK national derives the right of facilitation under EU law following the refusal of the Secretary of State to grant a residence card.
Ms Christy, a US citizen, had been living in Europe since 2010. Originally working in Slovakia, she met her partner, Mr Jones, while on holiday in London. The two formed a relationship and subsequently moved to Poland. Mr Jones exercised his right to free movement as an EU citizen, while Ms Christy entered the country and gained right of residency under Poland’s domestic immigration laws.
In 2015, the couple moved to the UK, where Ms Christy applied for a residence card as a family member of Mr Jones. However, this application was refused on the grounds that Ms Christy was not married to Mr Jones, and therefore did not meet the requirements necessary under the UK’s Immigration (European Economic Area) Regulations 2006. Despite previous cases wherein these regulations were deemed incompatible with EU law as they did not cover unmarried couples, the Secretary of State asserted that this did not affect Ms Christy’s situation.
An appeal was lodged by Ms Christy to the First-Tier Tribunal (FTT) which ordered that Ms Christy’s application be remitted to the Secretary of State for consideration. This was subsequently appealed by the Secretary of State to the Upper Tribunal. Initially the grounds for appeal were that the FTT had no authority to facilitate an appeal, and also that as a third country national Ms Christy did not have any entitlement under EU law to reside in her partner’s Member State.
During these proceedings, a similar case (Secretary of State v Banger), had concluded wherein it was established that a ‘durable partner’ of an EU citizen may in some circumstances be granted a right of facilitation with regards to a residency application in their partner’s Member State, derived from their partner’s right to free movement under EU law.
The Secretary of State subsequently amended its grounds for appeal, taking into account this judgement. It was stated that Ms Christy still did not have any right to facilitation as for such a right to arise, a third country national who is the durable partner of an EU citizen that returns to his home Member State after living in another must have gained entry and residence in that other Member State via Directive 2004/38/EC, which allows citizens of the EU and their family members to move and reside freely within Member States. It was claimed Ms Christy did not meet this criteria as she entered and resided via Poland’s domestic immigration law.
However, as per the judgement in the Banger case, the Court of Appeal went on to state that Member States have the discretion to take into account the personal circumstances of a third party national who is the durable partner of a citizen of that Member State, regardless of which legal mechanism was used to gain entry and residence in the Member State in which they formed their relationship. It was not open for the Secretary of State to dismiss an application purely on the basis that her previous immigration application was not made through Directive 2004/38/EC.
Therefore, the Court of Appeal dismissed the Secretary of State’s appeal, ordering a reconsideration of Ms Christy residence card application on the basis that she does have a right to facilitation under EU law, stemming from her durable partner’s EU citizenship.
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