This appeal is primarily concerned with a short but important point of EU law in relation to rights of immigrants from third countries which are said to derive from the Treaty right of free movement enjoyed by a partner who, as a national of the United Kingdom, is a citizen of the EU. The relevant Treaty right of free movement is that under Article 21(1) of the Treaty on the Functioning of the European Union (“the Treaty”). Article 21(1) provides:

The respondent, Ms Christy, is a US national who established what in EU law parlance is called a “durable relationship” with a UK national, Mr Jones, while they were both living in Poland. The term “durable relationship” derives from Article 3(2)(b) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely with the territory of the Member States (“the Directive”). Reflecting this terminology, I will refer to Ms Christy as the “durable partner” of Mr Jones.

Case-law of the CJEU has established that under certain conditions family members of an EU citizen may acquire rights of residence in that citizen’s home Member State which are derived from that citizen’s own Treaty right of free movement, the extent of those derived rights of residence being based on an analogy drawn with rights of residence of family members contained in Article 7(2) and Article 16(2) of the Directive. The leading judgment on this to which we were taken is the judgment of the Grand Chamber of the CJEU in Case C-456/12 O and B v Minister voor Immigratie, Integratie en Asiel EU:C:2014:135; [2014] QB 1163 (“the O and B case”). The CJEU’s subsequent decision in Case C-89/17 Secretary of State for the Home Department v Banger EU:C:2018:570 (“the Banger case”), delivered on 12 July 2018, has established that a durable partner of an EU citizen may in certain circumstances acquire a so-called right of facilitation in respect of consideration of an application for a residence card in that citizen’s home Member State, which right is derived in similar fashion from that citizen’s Treaty right of free movement and the extent of which is based on an analogy drawn with the rights of durable partners contained in Article 3(2)(b) of the Directive.

The main issue on this appeal relates to the conditions under which such a right of facilitation arises. Ms Christy claims that in the circumstances of the present case such a right of facilitation has arisen for her benefit, which the Secretary of State has failed to honour. The appellant Secretary of State contends that no such right of facilitation has arisen.

If we decide that Ms Christy has acquired a right of facilitation derived from Mr Jones’s Article 21(1) Treaty right in this case, as I would hold she has, the parties join in inviting us to give limited guidance on one point of law regarding the way in which the Secretary of State should consider whether to grant Ms Christy a residence card when he examines her case pursuant to that right of facilitation. I address this at the end of my judgment.

It deserves emphasis at the outset that the right of facilitation which Ms Christy enjoys is distinct from, and conceptually prior to, any decision that she should actually be accorded a right of entry and residence in the UK: see Case C-83/11 Secretary of State for the Home Department v Rahman [2013] QB 249 (CJEU), para. [21], and the judgment in the Banger case, para. [31]. Thus although I consider that she does have the benefit of the derived right of facilitation which she claims, that is not the end of the matter so far as concerns whether she should be issued with a residence card in the UK. The right of facilitation which she enjoys imposes an obligation on the Secretary of State to consider her application further and requires that in doing so he “confer a certain advantage” on her application, as the application of a third country national in respect of whom Article 3(2) of the Directive applies by analogy, “compared with applications for entry and residence of other nationals of third countries”: see the judgment in the Banger case, paras. [31]-[33]. We did not hear argument about what this means and what substantive content that obligation might have. Therefore, save for the guidance on the one point to which I have referred, I say no more about that. That is an issue which will have to be examined in another case.

The relevant facts can be summarised very shortly. Ms Christy is a citizen of the United States born on 13 January 1988. Mr Jones is a UK national born on 2 March 1978. Ms Christy came to Europe in 2010 and started working in a Canadian language school in Slovakia pursuant to a visa issued for that purpose. On a trip to London she met Mr Jones and he then went to see her in Slovakia in July 2011. They began a relationship and in September 2011 they moved to Poland, where Mr Jones worked in a school, exercising his rights of free movement under the Treaty and under Article 7(1) of the Directive, as a worker. Ms Christy was granted entry and a right of residence by the Polish authorities under Poland’s ordinary 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 in order to obtain these benefits.

As the tribunals below found and as the Secretary of State accepts, Ms Christy and Mr Jones are in a durable relationship, as that term is used in Article 3(2)(b) of the Directive. Since they started living together in Poland in 2011, it appears that they formed their durable relationship while in that country and the hearing before us proceeded on this basis.

In 2015, Mr Jones returned to the UK with Ms Christy as his durable partner. On 29 April 2015 Ms Christy applied for a residence card as a family member. This application was refused by a decision of the Secretary of State dated 29 October 2015, on the basis that Ms Christy was not married to Mr Jones and hence could not meet the requirements of regulation 9 of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). Ms Christy made further representations to rely on the decision of the Upper Tribunal in Secretary of State for the Home Department v Cain (IA/40868/2013), which held that regulation 9 was incompatible with EU law as articulated in Case C-370/90 Surinder Singh [1992] ECR I-4265 by reason that it did not cover durable partners. However, the Secretary of State maintained her previous refusal of a residence card, taking the view that the decision in Cain was limited in its effect and did not assist Ms Christy.

Ms Christy appealed to the First-tier Tribunal (“FTT”). The hearing of the appeal was adjourned while the Secretary of State undertook a review of her case, but this resulted in the same negative answer. Ms Christy’s appeal then proceeded to a hearing. Ms Christy succeeded in her appeal to the extent that in its decision promulgated on 30 August 2016 the FTT ordered that her case be remitted to the Secretary of State to consider whether a residence card should be issued in the exercise of discretion. The Secretary of State’s appeal to the Upper Tribunal was dismissed by a decision promulgated on 9 December 2016. It is unnecessary to examine the reasoning of the tribunals, because that has been overtaken by events in the form of the judgment in the Banger case (which clarified in a material way the position in EU law) and the reformulation of the submissions in this case in the light of it.

The Secretary of State appealed to this court on two grounds. The first was a procedural argument taken in the light of a further decision of the Upper Tribunal in another case which suggested that the FTT had no jurisdiction to entertain an appeal such as that brought by Ms Christy. As a result of a decision of the Supreme Court it then emerged that this was not a tenable ground of appeal and the Secretary of State no longer relies upon it.

The second ground was that Ms Christy, as a third country national who is the durable partner of an EU citizen, has no entitlement under EU law to reside in the latter’s Member State of nationality or to have her residence there facilitated in accordance with national legislation. Put in that bald way, this ground has been overtaken by the judgment in the Banger case, which makes it clear that in some cases such a durable partner will have a right of facilitation, derived by analogy with Article 3(2)(b) of the Directive from her partner’s Treaty right of free movement.

In light of the Banger judgment, the Secretary of State applied on 23 August 2018 to amend his grounds of appeal. In the proposed amended grounds of appeal the Secretary of State continues to deny that Ms Christy has any right of facilitation under EU law, but now on the basis of a contention that in order for such a right to arise for a third country national who is the durable partner of an EU citizen who returns to his home Member State following a period of residence in another Member State, the durable partner must have had her residence facilitated in that other Member State (that is to say, in Ms Christy’s case, in Poland) in accordance with Article 3(2) of the Directive. It is common ground on the facts that Ms Christy did not reside in Poland on the basis of any decision by the Polish authorities taken pursuant to Article 3(2) - this was because, since she was admitted to Poland under their ordinary immigration rules, she had no need or occasion to seek to rely on her rights under Article 3(2) or to ask the Polish authorities for a decision by reference to Article 3(2). So, contends the Secretary of State in his amended grounds of appeal, Ms Christy’s claim to a derived right of facilitation must fail for that reason (“the primary ground of appeal”). In the alternative, the Secretary of State contends that under EU law a Member State is allowed an area of discretion as to when to recognise a right of facilitation and that accordingly it is open to the Secretary of State to require that a durable partner’s residence in the other Member State must have been facilitated in that Member State in accordance with Article 3(2) of the Directive before accepting that a derived right of facilitation arises, so that he is entitled to refuse to accept that Ms Christy has a right of facilitation (“the alternative ground of appeal”).

The question of whether the Secretary of State should be granted permission to amend his grounds of appeal was adjourned to the hearing of the appeal. The Secretary of State’s application to amend is opposed by Mr Collins QC, who appears for Ms Christy. He submits that there has been a very lengthy delay since Ms Christy made her application for a residence card, during which she has been deprived of the opportunity to take gainful employment. It would be unfair to allow the Secretary of State to postpone matters further by being allowed to introduce these new grounds of appeal. The Secretary of State failed to raise the points now covered by the proposed amended grounds of appeal in his previous decisions and at the tribunal hearings below and should not be allowed to take them at this late stage. Moreover, originally the Secretary of State did not ask for an adjournment of this appeal to await the judgment in the Banger case, but only did so shortly before the hearing date originally scheduled for 11 April 2018, when at the same time he abandoned his original first ground of appeal. That course of conduct has occasioned further delay in the hearing of the appeal. Taking all these points together, says Mr Collins, it would be unjust and inappropriate for the court to grant the Secretary of State permission to amend the grounds of appeal.

In the event we heard argument de bene esse on the substantive merits of the appeal in respect of the Secretary of State’s proposed new grounds of appeal, reserving our decision on whether to grant permission for the amendment to final judgment. This allowed for efficient use of the time allocated for the hearing. Mr Lask for the Secretary of State opened the appeal by making his application to amend and developing his submissions on the merits in full; Mr Collins responded to the application and developed his submissions on the merits in full; and Mr Lask replied in relation to the application and merits.

In my judgment, the Secretary of State should be granted permission to amend the grounds of appeal. The amended grounds are simply a development, in light of the Banger judgment, of the Secretary of State’s original second ground of appeal. It is unfortunate that the delay to a decision in Ms Christy’s case has been so long, but the reality is that given the issues in the case it was practically inevitable that a final ruling by this court would need to await the outcome of the reference to the CJEU in the Banger case, which would provide authoritative guidance on the existence and extent of the rights under EU law on which Ms Christy bases her claim. The hearing in this court has been arranged promptly after the judgment in the Banger case was delivered. Unsurprisingly, Ms Christy now relies upon the Banger judgment on the appeal, in support of her claim; and it would be unfair to prevent the Secretary of State from adjusting his case in the light of that judgment to counter Ms Christy’s reliance upon it. The relevant facts are not in dispute. The amended grounds of appeal which are in issue only concern matters of law. Ms Christy and Mr Collins have been given ample notice of the arguments on which the Secretary of State proposes to rely. In the circumstances it is just and appropriate, and in accordance with the overriding objective, that permission should be granted for the amendments.

Article 21(1) of the Treaty, conferring a right of free movement, has been set out above. As an EU citizen, Mr Jones enjoys this Treaty right. The question is whether Ms Christy, as his durable partner who is a national of a third state, enjoys any derived rights under EU law parasitic upon Mr Jones’s Treaty right.

As the EU case-law makes clear, derived rights based on Article 21(1) of the Treaty take their content by analogy from the Directive. Recital (1) in the Preamble to the Directive mimics the terms of Article 21(1) of the Treaty. Recital (3) states that, when nationals of Member States exercise their right of free movement and residence, “Union citizenship should be [their] fundamental status”. According to recital (5):

Article 1(a) states that the Directive lays down, inter alia:

For the purposes of the Directive, a “Union citizen” is “any person having the nationality of a Member State” (Article 2(1)), and a “family member” includes “the spouse” (Article 2(2)(a)), a registered partner (Article 2(2)(b)), direct descendants under the age of 21 of the Union citizen or of the spouse or partner or who are dependants of the Union citizen or of the spouse or partner (Article 2(2)(c)) and “the dependent direct relatives in the ascending line and those of the spouse” of the Union citizen (Article 2(2)(d)). The “host Member State” is “the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence”: Article 2(3).

Article 3 provides as follows:

Article 7(1) provides that EU citizens shall have the right of residence on the territory of another Member State for a period of longer than three months in various circumstances, including under paragraph (a) “if they … are workers … in the host Member State”. Mr Jones was a worker in Poland and hence benefited from this provision while he was there.

Article 7(2) provides:

Chapter IV, which includes Article 16, deals with the right of permanent residence. I refer to this because it is relevant for an understanding of the judgment in the O and B case. Article 16 provides in relevant part as follows:

The Directive also sets out limits on the rights of free movement, residence and permanent residence which it contains, on grounds of public policy, public security or public health. There is no suggestion in the present case that there is any reason under these heads why Ms Christy should not be allowed to enter and reside in the UK. Nor is there any suggestion that Ms Christy or Mr Jones have sought to make abusive use of their EU rights in any way: cf the judgment in the O and B case at para. [58].

For the purposes of this discussion it is relevant to distinguish between the Member State which is the home of the relevant EU citizen, which I will call “the home Member State”, and the Member State in which that citizen’s durable relationship with a third country national was created or carried on, which I will call “the relationship Member State”. Since the UK is the home of Mr Jones and Poland is where Mr Jones and Ms Christy resided together for some years in their durable relationship, I refer to the UK as the home Member State and to Poland as the relationship Member State.

The O and B case concerned two third country nationals who applied for residence in the Netherlands. The first was Mr O, a Nigerian, who married a Dutch national in France in 2006 and resided with her in Spain from 2007, although for work reasons she had to spend most of her time in the Netherlands. Mr O had a residence document from the Spanish authorities which showed he resided in Spain as a family member of an EU citizen, his wife (judgment, para. [14]). Mr O went to live with his wife in the Netherlands and sought a residence document from the Dutch authorities. The second was Mr B, a Moroccan, who lived with a Dutch national in the Netherlands unmarried for many years. In 2006-2007 they lived together in Belgium but Mr B’s partner spent most of her time in the Netherlands, where she worked. Mr B did not seek to obtain a residence document from the Belgian authorities based on his rights under the Directive. In 2007 they married in Morocco and in 2009 returned to reside in the Netherlands, where Mr B also sought a residence document from the Dutch authorities. The Dutch court made a reference to the CJEU asking, inter alia, whether in these circumstances Mr O and Mr B had a derived right of residence in the home Member State of their respective partners (the Netherlands) based on the partners’ rights of free movement under Article 21(1) of the Treaty, by virtue of their spouses having travelled to and resided with them in other Member States.

The CJEU addressed this issue at paras. [44]-[57] and [61] of its judgment, as follows:

The CJEU said that merely short periods of residence together in the relationship Member State would not suffice: para. [59]. It also observed that since Mr B had acquired the status of family member, within the meaning of Article 2(2) of the Directive, of an EU citizen by marrying his wife after her residence in the relationship Member State relied upon (Belgium), he was not entitled to a derived right of residence in the home Member State (the Netherlands) by analogy with Article 7(2) or Article 16(2): paras. [62]-[63]. The judgment did not address the distinct question of any derived right of facilitation for durable partners.

Since in the Banger case the CJEU built upon its reasoning in the O and B case, Mr Lask submits that its judgment in the Banger case should be interpreted in the light of what was said in the O and B case and that the derived right identified in Banger should be read as subject to the same limitations, mutatis mutandis, as the derived rights identified in the O and B case. This means, he says, that Ms Christy could only have a derived right of facilitation (by analogy with Article 3(2)(b) of the Directive) in the UK, as the home Member State, if she had resided in Poland with Mr Jones pursuant to and in conformity with the conditions set out in Article 3(2)(b). Mr Lask submits that this means that Ms Christy has no derived right of facilitation exercisable in the UK in this case, because she did not seek to exercise her right of facilitation under Article 3(2)(b) in Poland (the relationship Member State) when Mr Jones was there as a worker and does not benefit from any ruling by the Polish authorities in her favour based on that article. In support of this submission, Mr Lask emphasises the references in the O and B judgment at paras. [54]-[57] to the need for genuine residence in the relationship Member State pursuant to and in conformity with the provisions of the Directive which are concerned with the rights of the third country national who is the family member of the EU citizen (namely Article 7(2) and Article 16(2)), as well as pursuant to and in conformity with the rights of the EU citizen herself (as set out in Article 7(1) and Article 16(1)). I return to this submission below.

The Banger case is directly concerned with the circumstances in which a third country national who is the durable partner of an EU citizen acquires a derived right of facilitation by analogy with Article 3(2)(b) of the Directive. Ms Banger was a national of South Africa. Her durable partner, Mr Rado, was a British citizen. They lived together in the Netherlands, where Ms Banger was granted a residence card by the Dutch authorities pursuant to her right of facilitation under Article 3(2)(b) of the Directive – a feature of the facts of the case to which Mr Lask calls particular attention. Ms Banger and Mr Rado then moved to live in the UK, where Ms Banger applied for a residence card. This application was rejected by the Secretary of State because Ms Banger was not married to Mr Rado and hence could not bring herself within the 2006 Regulations. In the proceedings arising from her appeal, the Upper Tribunal referred to the CJEU the question, among others, whether Ms Banger had a derived right of facilitation (by analogy with Article 3(2)(b) of the Directive) based on Mr Rado’s Treaty right of free movement. The CJEU held that such a derived right of facilitation arose in such circumstances.

The CJEU’s legal reasoning in Banger is important. It makes no reference to, and in my view is in no way predicated upon, the fact that Ms Banger happened to have exercised her rights under Article 3(2)(b) of the Directive when she was with Mr Rado in the Netherlands.

The relevant part of the CJEU’s reasoning appears at paras. [19]-[35] of the Banger judgment, as follows:

The important rationale which the CJEU gives for its conclusion at para. [35] is that set out at para. [28]. The foundation for the derived right of facilitation for a third country national who is the durable partner of an EU citizen, based upon that citizen’s right of free movement under Article 21(1) of the Treaty, is that without the assurance that if he enters into a durable relationship with such a partner while residing in another Member State (what I have called the relationship Member State) he will be able to return to the home Member State and have a reasonable opportunity of residing there with her, 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. This rationale is in no way dependent on whether the durable partner happened to exercise her right of facilitation under Article 3(2)(b) of the Directive in the relationship Member State or not.

In this context I return to Mr Lask’s submission that the derived right of facilitation for a durable partner of an EU citizen returning to his home Member State, as identified by the CJEU in the Banger case, must be read as subject to conditions identified in the O and B judgment and that those conditions include that the relevant third country national (durable partner or family member, as the case may be) resided with the EU citizen in the relationship Member State pursuant to and in conformity with the third country national’s rights under the Directive (in Article 3(2)(b), in the case of a durable partner, and in Article 7(2) and Article 16(2) in the case of a family member). I cannot accept this submission, for a number of reasons.

First and most importantly, in my view para. [28] of the judgment in Banger case is founded on a rather abstract and hypothetical inference regarding the effect upon the mind of the relevant EU citizen while still in his home Member State if he thinks that after residing in another Member State and creating or strengthening a family life there with a spouse or a durable partner he will not be able to return to live in the home Member State with his spouse or durable partner. Whilst in the case of a durable partner this does not lead to a derived right of residence, it is taken to lead to a derived right of facilitation in respect of consideration of the prospective application by the durable partner of the EU citizen for a residence card to live with the EU citizen upon return to the home Member State. Such a process of reasoning, turning as it does on inferences regarding the attitude of the EU citizen, does not depend in any way upon whether his prospective durable partner might happen to have been in the relationship Member State as a result of exercising any right she might have in the relationship Member State under Article 3(2)(b) of the Directive. 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.

Secondly, even where the right of facilitation has been relied upon in the relationship Member State, it is by no means inevitable that this will appear from whatever immigration decision was taken or immigration document was issued in that state. That is because the right of facilitation under Article 3(2)(b) is in relation to the treatment of the durable partner against the background of the Member State’s existing immigration regime; hence the right might well be satisfied simply by the issue of an entirely ordinary immigration document which makes no reference to Article 3(2) or the Directive at all. This makes it all the more improbable that the CJEU could have intended that the derived right of facilitation which it articulated in Banger, applicable in the home Member State, was to be taken to be predicated upon a decision by the immigration authorities in the relationship Member State in respect of the durable partner which was itself based on Article 3(2) of the Directive. The authorities in the home Member State might be unable to tell whether a decision by those other immigration authorities was based on Article 3(2) or not, even where Article 3(2) had in fact been relied on by the durable partner in the relationship Member State.

Thirdly, it is significant that the specific passage in the O and B judgment cited as authority by the CJEU for para. [28] of the Banger judgment is para. [54]. Here I consider Mr Lask’s submission referred to above based on paras. [54] to [57] of the O and B judgment. The reasoning in those paragraphs proceeds in this way. First, at para. [54] the CJEU gives a general reason as foundation for the derived rights of the third country nationals, which is based purely on the position of the EU citizen: the EU citizen has to have genuine residence in the relationship Member State pursuant to and in conformity with the conditions set out in Article 7(1) and (2) of the Directive. There is no reference here to how the third country national happens to be resident in the relationship Member State; and the reference to Article 7(2) is explicable, in my view, because it itself cross-refers to certain of the conditions to which the EU citizen’s own right in Article 7(1) are subject (i.e. those in Article 7(1)(a)-(c)). It is this general reason, founded purely on the position of the EU citizen, which is cited as authority in the Banger judgment for the foundation of the derived right in that case.

Then, at para. [55] in the O and B judgment, the CJEU introduces an additional point which is referable to the particular claims made by Mr O and Mr B in the case before it, based upon their claims to be family members with a right of residence under the Directive, which the CJEU says is capable of making theirs an “a fortiori” case, i.e. one which may be still stronger than that given by the general foundation identified in para. [54]. In my view, the references in paras. [55]-[57] to rights of the spouses of the EU citizens as contained in Article 7(2) and Article 16(2) do not undermine or qualify the general foundation for derived rights set out in para. [54] to which I have referred, and on which the CJEU relied in the Banger case.

I would add this. Although Mr Lask invited us to accept that the CJEU in paras. [55]-[57] in the O and B judgment was saying that the presence of the family member in the relationship Member State had to be the consequence of an application by the family member to the immigration authorities of the relationship Member State based upon his rights under Article 7(2) or Article 16(2) and the grant of a residence document by those authorities based upon those rights, I do not think that is correct. In my opinion, the better view is that the CJEU is there saying that the relevant EU citizen had to be in the relationship Member State in circumstances where she had a right to be there under her EU rights under the Treaty and the Directive (in particular, under Article 7(1) or Article 16(1)), even without any specific decision to that effect by the immigration authorities of that Member State, and that, having regard to the nature of the claims made by Mr O and Mr B, the residence of Mr O and Mr B in that Member State (Spain and Belgium, respectively) had to be of a character for which they could (if necessary) have relied upon their rights under the Directive. On this interpretation of the judgment, 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 (in the sense of being directly and explicitly relied upon in their dealings with the immigration authorities of the relationship Member State).

This interpretation is supported by a number of considerations: (i) the CJEU knew that Mr B had not applied for or obtained a residence document in the relationship Member State (Belgium), but it did not say that his derived right claim must fail for that reason (on the contrary, it gave other and different reasons why it should fail at paras. [62]-[63]); (ii) at para. [57] the CJEU said that it was for the referring court to determine whether, “on account of living as a family during [a] period of genuine residence [in the relationship Member State], Mr O and Mr B enjoyed a derived right of residence in the [relationship Member State] pursuant to and in conformity with Article 7(2) or Article 16(2) of [the Directive]” (I note that the inclusion of the word “derived” seems odd here, since the issue is whether they actually had rights under those articles of the Directive) – in which formulation the focus is on whether they enjoyed (i.e. had) such a right of residence rather than on whether they sought to exercise or rely upon it and whether the immigration authorities of the relationship Member State issued any documents which referred to it; (iii) at para. [59], when giving further guidance to the referring court, the CJEU again focused on whether a right of residence existed pursuant to Article 7(1) and (2) or Article 16(1) and (2) (rather than on whether it had been relied upon in any application to or document issued by the immigration authorities of the relationship Member State), by referring to the question “whether the cumulative effect of various short periods of residence in the [relationship Member State] may create a derived right of residence for a family member …” and saying, “it should be borne in mind that only a period of residence satisfying the conditions set out in [those provisions] will give rise to such a right of residence”; and (iv) as explained above, the logic of the CJEU’s reasoning at para. [54], of which paras. [55]-[57] represent an a fortiori variant, does not depend upon whether the third country national happened to rely upon Article 7(2) or Article 16(2) in any application to the immigration authorities of the relationship Member State to obtain residence in that state, as distinct from being lawfully in that state (e.g. by virtue of a provision in the ordinary domestic immigration rules of that state) in circumstances which would have allowed him to rely upon those provisions should it prove necessary to do so. This interpretation of the O and B judgment is also in line with the judgment of the Grand Chamber of the CJEU in Joined Cases C-424-425/10 Ziolkowski v Land Berlin [2014] All ER (EC) 314, concerning the meaning of the phrase “have resided legally” in Article 16(1) of the Directive, at paras. [45]-[49], where the Court says that this phrase means “a period of residence which complies with the conditions laid down in the directive, in particular those set out in Article 7(1)”; i.e. the relevant test is set by reference to whether the individual satisfies the conditions laid down in Article 7(1) so as to enjoy a right under that provision, even if he may not have had to exercise or invoke that right in his dealings with the immigration authorities of the host Member State. This interpretation of the O and B judgment affords further support for the interpretation of the Banger judgment for which Mr Collins contends.

Fourthly, the CJEU’s reference in para. [28] of the Banger judgment to “a family life which has been created … with [the] third country national, in the host Member State [i.e. in the relationship Member State], during a genuine residence” (which also reflects similar language used in para. [54] of the O and B judgment) is a positive indication that the derived right does not depend upon the third country national exercising rights under the Directive in the relationship Member State. This is because a durable relationship will only be capable of being “created” in the relationship Member State at a time before the person who becomes the durable partner has any rights under the Directive stemming from that relationship. (The CJEU makes reference here and elsewhere to the relevant residence needing to be “genuine”: that would in my view probably preclude a third country national having a derived right of residence or facilitation if they had been in the relationship Member State as an illegal immigrant, since an EU citizen could not reasonably expect that a relationship established in another Member State in circumstances of illegal presence there of his partner should be recognised by the home Member State as the foundation of any derived rights for the partner; however, that is not this case, and it is unnecessary to explore this point any further).

In addition, when one looks at Article 3(2) itself, the right of facilitation it sets out is expressed to be “Without prejudice to any right to free movement and residence the persons concerned [i.e. the relevant third country nationals] may have in their own right …”. Thus the article itself recognises that the third country national who is said to be a durable partner of an EU citizen might well have a right of residence in the relationship Member State derived from a source other than EU law. In my view, this indicates that in the world of the hypothetical EU citizen contemplating the exercise of his own free movement rights to leave his home Member State to go to another Member State, and then wishing to return to the home Member State with a durable partner acquired in that other Member State, he would reasonably expect that the derived rights of his durable partner would arise if her residence in the relationship Member State was the result of the ordinary domestic immigration law of that state, as well as in a case where she had found she had to rely on her right under Article 3(2).

In relation to the primary ground of appeal, Mr Lask was unable to identify any coherent policy rationale why the derived right of facilitation sought to be relied on by Ms Christy in this case, on the authority of the Banger judgment, should be limited to cases in which the third country national who is the durable partner has in fact made an application to the immigration authorities of the relationship Member State relying on Article 3(2) of the Directive and has obtained an immigration decision from those authorities based on that provision. As I have said, there will be many cases where the third party national is lawfully in the relationship Member State by virtue of its ordinary domestic immigration rules, without having any need or occasion to make an application for residence relying upon the right of facilitation in Article 3(2), at the time when the durable relationship is created or strengthened. Ms Christy’s case is one of these. It would be inconsistent with the rationale given by the CJEU for the derived right of facilitation, in particular at para. [28] in the Banger judgment, to deny the existence of a derived right of facilitation in such a case. To limit the derived right in this way would also mean it operated in an arbitrary manner which could never have been intended by the CJEU, since for the reasons given above it may be entirely adventitious whether the durable partner ever thought it necessary to rely on their rights under Article 3(2) or not.

Pursuant to this analysis, I also consider that there is no merit in the alternative ground of appeal. In support of the alternative ground of appeal Mr Lask relied on the phrase “in accordance with its national legislation” in the introductory section of Article 3(2) of the Directive and para. [24] of the judgment in the Rahman case, which refers to that phrase. In my view, this is misconceived. Rahman para. [24] is not concerned with whether the right of facilitation arises, but with its content should it be found to have arisen. As I have explained, this is not a matter which is the subject of the current appeal. Although, as indicated in Rahman, the phrase in the introductory section of Article 3(2) implies that there is a discretion for a Member State in selecting the factors to be taken into account when giving effect to the right of facilitation, it does not confer a discretion on a Member State to deny the existence of the right of facilitation in the first place. The existence of the right is governed by the Directive itself, as interpreted in the Banger case.

The present case is about the existence of the right of facilitation rather than its content and its application to the facts of Ms Christy’s case. We have not heard argument about these latter points; nor were we shown all the materials potentially relevant to them, including the Secretary of State’s policy guidance which Mr Lask told us exists. Moreover, the 2006 Regulations have been replaced by a new set of regulations promulgated in 2016, and it is unclear which should be applied in the further consideration of Ms Christy’s case which the Secretary of State is required to undertake, as the transition provisions were not explained to us. Nonetheless, as I mentioned in the introduction, the parties are agreed that we should give guidance on one particular issue relevant to the content of the right of facilitation, namely whether it is open to the Secretary of State to stipulate in his policy guidance or otherwise that a relevant factor to be taken into account in giving effect to the derived right to facilitation (when it exists) is that the third country national who is the applicant for a residence card has not obtained a decision based on Article 3(2) of the Directive from the immigration authorities of the relationship Member State. This is a discrete point closely related to the grounds of appeal considered above, the parties both invite us to address it and we have heard full argument on it. In my view, it is appropriate that we should deal with it and give the guidance which is sought, if necessary by way of a declaration (although I expect that this will not be required, since the Secretary of State will no doubt be content to accept the guidance given below without the need for a formal order).

As the Rahman judgment indicates, a Member State has a discretion regarding the selection of factors to be taken into account in considering whether a third country national should be granted a residence card pursuant to a right of facilitation. However, Article 3(2), which applies to the derived right of facilitation in cases like the present by analogy, also imposes an obligation on the home Member State of the EU citizen to undertake itself an extensive examination of the personal circumstances of the applicant.

In my judgment, two things can usefully be said in the light of the argument we have heard. First, if the durable partner of a returning British citizen had made an application to the immigration authorities in the relationship Member State based on Article 3(2) for a residence permit there and that application had been refused, I consider that it would potentially be open to the Secretary of State to adopt a policy which said that this could be treated as a relevant, albeit not determinative, factor to be taken into account when considering an application for a residence card by that durable partner made in reliance upon the derived right of facilitation identified in the Banger case. It would still be incumbent on the Secretary of State to examine the personal circumstances of the durable partner in the light of any factual evidence she put forward, but - depending on the circumstances in which the immigration authorities of the relationship Member State had rejected her application there and the reasons given by them for doing so - he might rationally be able to place some weight upon their decision, if for example they had been better placed than him to consider and assess the factual case presented by the applicant under Article 3(2).

Secondly, however, it would not be open to the Secretary of State to adopt a policy which stipulated that the absence of a decision based on Article 3(2) of the Directive from the immigration authorities of the relationship Member State is a relevant factor to be taken into account when considering such an application for a residence card by the durable partner of a returning British citizen, where the durable partner had not made an application based on Article 3(2) because she had no need or occasion to make an application to those immigration authorities based on that provision. In that type of case, the absence of such a decision by those immigration authorities in relation to Article 3(2) would provide the Secretary of State with no assistance whatever regarding his evaluation of the circumstances in which the applicant formed the relevant durable relationship with the returning British citizen and would provide no assistance whatever in relation to the question whether she ought now to be granted a residence card in the UK. This is, of course, the position in relation to Ms Christy in the present proceedings.

For the reasons given above, I would give permission for the Secretary of State to amend his grounds of appeal but would dismiss the appeal. I would hold that Ms Christy does have a derived right of facilitation under EU law of the kind identified in the Banger case. The Secretary of State is obliged to reconsider her application for a residence card, taking that right into account.

I agree.

I also agree.