The Court of Appeal recently held that the derived right of facilitation identified in Banger (C-89/17, EU:C:2018:570, discussed here) cannot be read as being subject to the limitations as the derived rights identified in O v Minister voor Immigratie, Integratie en Asiel (C-456/12, EU:C:2014:135). The appeal by the Home Office, which Sales LJ dismissed without hesitation, against a decision to reconsider an application for a residence card shows that the UK authorities are extremely desperate to claw something back from the CJEU’s judgment in Banger. A US citizen, Ms Christy had established a “durable relationship” within the meaning of article 3(2)(b) of the Citizens’ Directive (2004/38/EC) with Mr Jones, a UK national, while they were both residing in Poland. She had initially taught in Slovakia but after meeting him in London the couple decided to move to Poland in 2011 where he worked in a school and exercised his rights of free movement as a worker under article 7(1) of the Directive and the TFEU. The Polish authorities granted her entry and a right of residence under Poland’s ordinary domestic immigration rules and she did not need to seek to rely on any rights she might have as the durable partner of an EU citizen in order to acquire these benefits. It was undisputed that there was a durable relationship, which began and developed in Poland, between the couple. They returned to the UK in 2015 and Christy applied for a residence card.
Her application was refused because she was not married to her partner and so she could not satisfy the requirements of regulation 9 of the then Immigration (European Economic Area) Regulations 2006. Relying on Cain (IA/40868/2013), she said that regulation 9 was incompatible with EU law as articulated in the historic case of Surinder Singh (C-370/90, EU:C:1992:296) because it excluded durable partners. The refusal was maintained but in August 2016 the tribunal ordered that her case be remitted to the decision-maker to consider whether a residence card should be issued in the exercise of discretion. But the matter still proceeded into the Court of Appeal with the government arguing that the tribunal had no jurisdiction to entertain the appeal and that Christy had no entitlement under EU law to reside in the UK or to have her residence here facilitated in accordance with national legislation. SM (Algeria)  UKSC 9 (discussed here) settled the jurisdiction point and Banger enlarged the Singh principle to cover an extended family member (EFM) and where an EU citizen returns to his member state of origin it must facilitate the entry and residence of the third country national non-EU partner with whom the EU citizen has a “durable relationship”.
The Court of Appeal
Underhill Sharp and Sales LJJ dismissed the appeal. The court dissected difficult points found in Banger and the judgment contains lengthy extracts of the CJEU’s ruling in that reference. The Home Office submitted that because in Banger the CJEU built upon its reasoning in O and B the former ruling should be interpreted in the light of what was said in the latter case. Thus, 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.
Sales LJ rejected the submission and the court held that Banger was not subject to the conditions in O and B. He observed that facts of Banger were similar to those in Christy’s case, and the decision directly concerned the circumstances in which a third-country national who was the durable partner of an EU citizen would acquire a right of facilitation. It was clear that the CJEU’s decision that Banger had a derived right of facilitation rested on the belief that an EU citizen might be dissuaded from exercising his right of free movement and leave his home member state if the possibility arose that he might not subsequently be able to return home with a durable partner.
So the Banger principle stands alone independently of whether the durable partner had exercised her rights under article 3(2)(b) in the state where the relationship developed, i.e. Poland or the relationship member state. It was also true that the right of facilitation might be reflected in an entirely ordinary immigration document without reference to article 3(2)(b) or the Directive at all. The observation led Sales LJ to reason that:
37. 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.
In O and B the CJEU was not at all saying that the third country family member’s presence in the relationship state had to benefit from an immigration decision based on the exercise of their Directive rights.
On the contrary, the point was simply that that the EU citizen had to have been resident in the relationship state in circumstances where he or she had a right to be there under the TFEU and the Directive, even in the absence of a specific immigration decision to that effect. The existence of such rights is the crucial thing regardless of whether they have been exercised. Moreover, article 3(2) also expressly recognises that the third-country national might derive a right of residence in the relationship state from a source other than EU law. The Home Office failed to identify any coherent policy rationale for limiting the right of facilitation. Since there would be many cases in which the third-country national was lawfully in the relationship state without having to rely on article 3(2)(b), Sales LJ reasoned that:
44. … It would be inconsistent with the rationale given by the CJEU for the derived right of facilitation, in particular at para  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.
Addressing the topic of discretion, the court also considered the case of Rahman (C‑83/11, EU:C:2012:519) and said that although article 3(2) affords member states a discretion in selecting the factors to be taken into account when giving effect to the right of facilitation, it does not however confer a discretion to deny the existence of the right.
Since Rahman indicates that member states have a discretion over 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, the court held that the Home Office could potentially adopt a policy which provided that a failed application under article 3(2)(b) in the relationship state was a relevant, but not determinative, factor. Ultimately, it was clear to the court that Ms Christy had a derived right of facilitation which had to be taken into account by the UK authorities when considering her residence card application.
This is a very positive decision where Sales LJ refused to put a gloss on the ratio of Banger and it also shows that the Home Office suffers from an acute tendency to waste a lot of time and money on hopeless cases and cause needless suffering to honest citizens without any reason at all apart from pigheadedness. The other reason to inflict crazy suffering on honest people is Brexit which means that stamping out EU law rights is highly fashionable with Home Office decision-makers who are habitually oppressive about everything.
AG Bobek opined (discussed here) in Banger that the approach in Sala (EFMs: Right of Appeal)  UKUT 0411 (IAC) was highly suspicious yet he remained reluctant to dismiss in its entirety the idea that judicial review is an inadequate remedy for EFMs. He was somewhat ambivalent about the CJEU’s role in the dispute in the main proceedings. Earlier in Khan  EWCA Civ 1755 (discussed here), Irwin LJ held that Sala was wrongly decided.
While making the reference to the CJEU in SM (Algeria), the Supreme Court held that the decision in Sala is to be deprecated and that Khan must be followed on the interpretation of regulation 26 of the 2006 Regulations. The Justices had no doubt that the outcome in Khan is correct “and that Sala should be overruled.”
However, the 2006 Regulations were replaced by the Immigration (European Economic Area) Regulations 2016. Consequently, decisions to refuse to issue an EEA family permit, a registration certificate or a residence card to an EFM have been expressly excluded from the definition of an “EEA decision” in regulation 2(1) in the 2016 Regulations.
Overall, irrespective of the ratio of Khan, the CJEU’s judgment in Banger seems to have left little doubt that EFMs are entitled to a right of appeal and that judicial review cannot suffice as sufficient redress in that regard.