The latest ruling of the Court of Justice of the European Union (CJEU) on the rights of extended family members looking to join an EU citizen, and the availability of appeal in the face of a refusal to grant a residence card, will be of interest to EEA immigration solicitors, and indeed to all immigration lawyers. In a factual matrix almost identical to Surinder Singh – the critical difference being that the case concerned an unmarried partner rather than a spouse – the CJEU has considered the provisions of the immigration (European Economic Area) Regulations 2006 in these circumstances. The CJEU also considered the legality of there being no right of appeal in the face of a refusal.
Secretary of State for the Home Department v Banger
The case of Banger concerned the right of an unmarried partner of a UK national to obtain a residence card in the UK when the couple moved to the UK from the Netherlands. Ms Banger is a South African national. She and her partner had lived together in South Africa before moving together to the Netherlands for her partner to take up a job. She had a residence card in the Netherlands as an extended family member. In 2013, the couple decided to move to the UK, but Ms Banger’s application for a residence card was refused because the relevant legislation.
The EU/UK legislation
The rights of extended family members to join their EU citizen partner are familiar to London immigration solicitors. They are contained in Directive 2004/38. Extended family members do not have the automatic rights of ‘family members’ - the spouse, civil partner, dependant child or dependant parent - to enter and reside in the host EU state with the EU citizen. Article 3(2) of the Directive imposes a duty on Member States to “facilitate entry and residence” for extended family members – including “…the partner with whom the Union citizen has a durable relationship, duly attested.” The Directive also imposes a duty on Member States in respect of extended family members to “… undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”.
The Directive also requires Member States to ensure that ‘family members’
“…shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health. ...The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.”
The immigration (European Economic Area) Regulations 2006, which transposed the Directive into UK law includes in the definition of ‘extended family member’, the partner of an EEA national who can prove there is a durable relationship with the EEA national. The Regulations extend to cover family members of a UK national as if he or she were an EEA national, provided that (Regulation 9) “…the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and (b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom";
However, the Regulations only allowed the issue of residence cards to the spouse or civil partner of UK national.
As London immigration appeal lawyers will recognise, the case was almost exactly identical to the facts of Surinder Singh, the crucial difference being that the partner was unmarried. The First Tier Tribunal gave permission to Ms Banger to appeal to the Upper Tribunal which recognised the similarity to Surinder Singh, but also recognised that a differently composed Upper Tribunal had held that there was no right of appeal under the relevant legislation – the immigration (European Economic Area) Regulations 2006.
The judgment of the CJEU
The CJEU noted that because Ms Banger’s partner was a UK national in his country of origin (i.e. the UK), and not of another EU country exercising treaty rights to come to the UK, there was no duty under the Directive for the UK to facilitate her residence card as someone in a ‘durable relationship’ with an EU citizen. However, Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) could in certain cases give such a right to third country nationals such as Ms Banger. In the case where an EU citizen is returning to his or her country of origin (in this case the UK0, the domestic rules cannot put the EU citizen or an extended family member in any worse position than they would have been if they had travelled to a different EU state.
Although the Directive did not grant third country nationals in a ‘durable relationship’ with an EU citizen a right of entry and residence – the Directive does impose an obligation to “… confer a certain advantage on applications submitted by the third-country nationals envisaged in that article, compared with applications for entry and residence of other nationals of third countries”.
The Directive refers to the requirement of Member States to carry out ‘an extensive examination’ of the circumstances when considering an application from an extended family member.
Moving on from that, while the CJEU recognised that Member States have a wide discretion about what they will and will not include in this extensive examination of circumstances, this must still be consistent with the obligation to ‘facilitate’ the application for a residence card. As such, in a case such as this where the EU citizen is returning from another EU member state to his or her home state, any decision to refuse his or her partner’s residence authorisation must only come after an extensive examination of the applicant’s personal circumstances and be justified by reasons.
Finally, the CJEU has held that third country nationals in Ms Banger’s position should have a right of appeal. The court said that they “must have available to them a redress procedure in order to challenge a decision to refuse a residence authorisation taken against them, following which the national court must be able to ascertain whether the refusal decision is based on a sufficiently solid factual basis and whether the procedural safeguards were complied with. Those safeguards include the obligation for the competent national authorities to undertake an extensive examination of the applicant’s personal circumstances and to justify any denial of entry or residence.”
Implications for EU citizens and their partners
The decision of the CJEU is obviously an important one for couples who have not married or registered a civil partnership but are nevertheless in a ‘durable relationship’. It’s also an important reminder that EU law protects those coming back to the UK having worked in another EU state if otherwise they would be prevented from returning to the UK because the immigration regime affecting extended family members would be more restrictive than if they went to another EU country.
OTS Solicitors are Legal 500 immigration solicitors with extensive experience in assisting EU citizens and their partners with their immigration issues in the UK. We can assist with residence cards, and with permanent residence applications for EU citizens who have been in the UK for 5 years. To book an appointment to discuss your EU immigration matter, please call 0203 959 9123.
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Posted on: Thursday, 19 July, 2018