Personal Immigration

Case C-89/17 Banger - Part 1 - Surinder Singh available to extended family members if AG Bobek Opinion followed by CJEU

[Note: This article is 1 of 2 on the AG’s Opinion in Banger.  In our second post we discuss the decision in relation to the right to an effective remedy]

Advocate General Bobek delivered his Opinion in the hugely important Banger case on 10 April 2018.

The headnote of the Press Release of the CJEU sets out that:

“where an EU citizen returns to his Member State of origin, that Member State must facilitate the entry and residence of the citizen’s non-EU partner with whom he has created or strengthened family ties in another Member State

The requirement to facilitate does not confer an automatic residence right but does require the Member State to undertake an extensive examination of the personal circumstances of the non-EU citizen and justify any refusal of entry or residence”

As background, Ms Banger is the unmarried third-country national partner of Mr Rado, a British national. They moved to the Netherlands and Ms Banger was granted a Dutch residence card in her capacity as an extended family member of an EU citizen, in accordance with Directive 2004/38.

Article 3 of the Directive sets out, so far as is relevant:

  1. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.

Background

In 2013, Ms Banger and Mr Rado moved to the UK and Ms Banger applied for a residence card. The Secretary of State for the Home Department refused the application relying on the Immigration (EEA) Regulations 2006.  To qualify as a family member of a British citizen under the 2006 Regulations, the applicant must either be the spouse or civil partner of the British national. Ms Banger was not married to Mr Rado at the time her application for residence was made and her application was therefore refused.

Ms Banger challenged the Secretary of State’s decision.

The Upper Tribunal (Immigration and Asylum Chamber) referred questions to the Court of Justice concerning the correct interpretation of the free movement directive and the implications of the judgment of the Court in Surinder Singh. (The current approach of the UK to Surinder Singh applications is discussed in my blog here). Following that case-law, when EU citizens return to their Member State of nationality after having exercised a right of residence in another Member State, their family members must enjoy at least the same rights as would be granted to them under EU law in another Member State. However, Surinder Singh concerned the spouse of an EU citizen, whereas Banger concerns an unmarried couple.

The Upper Tribunal asked the Court of Justice whether the principles set out in Surinder Singh also apply in circumstances where the non-EU citizen is not married to the EU national returning to his/her Member State of origin. It asked whether a decision to refuse a residence authorisation, not founded on an extensive examination of the personal circumstances of the applicant, not justified by adequate or sufficient reasons, is unlawful under EU law.

Opinion

Advocate General Michal Bobek acknowledged that the Court of Justice has confirmed on a number of occasions that EU rules on free movement may also apply by analogy in situations concerning EU citizens returning to their Member State of nationality after having exercised free movement rights.  The logic of this is that a person might otherwise be deterred from leaving their country of origin in order to undertake economic activity in another Member State if, upon return, the conditions of entry and residence were not at least equivalent to those which enjoyed in the territory of another Member State (§31).  

The Advocate General found that this logic also applies fully to ‘extended family members’, including unmarried partners of EU citizens.  However, the Advocate General took the view that objectively different situations, i.e. between nationals who have and have not exercised Treaty rights in another Member State, cannot and should not be treated the same (§35-47).

Consequently, the Advocate General concluded that the Court should find that:

“47. … a third-country national, the partner of a Union citizen in a durable relationship — who has exercised his right of freedom of movement — must, upon the return of the Union citizen to his home Member State, not receive treatment less favourable than that which the directive lays down for extended family members of Union citizens exercising their freedom of movement in other Member States.”

The Advocate General noted that Article 3(2) of the Directive which requires Member States to facilitate the entry and residence of non-EU citizens with whom an EU citizen has a durable relationship does not confer an automatic residence right.

As such, the provision should apply by analogy to EU citizens returning to their Member State of origin cannot lead to the recognition of an automatic residence right for their non-EU partner in the Member State of origin. Instead, that provision must apply to ‘returning’ citizens in the same way it would apply to citizens living in another Member State.

The Advocate General acknowledged that the Directive grants Member States some discretion as to the specific conditions and factors to be taken into account in relation to an application for entry and/or residence made by the non-EU partner.

However, he referred to Rahman and noted that it is clear from the directive that that discretion is limited by (i) the requirement to ensure that ‘extended family members’ must be better off than the general category of non-EU nationals; and (ii) that Member States must undertake an extensive examination of the personal circumstances of the applicant and justify any denial of entry or refusal.

In addition, according to the Advocate General, the fact that a residence card has been issued by another Member State may not necessarily lead to the right of residence in the EU citizen’s Member State of origin being granted (or in any other Member State), but that an ‘extensive examination of the personal circumstances “would then logically also include taking into account for evidentiary purposes that by the issuing of a residence card by another Member State, a durable relationship had already been acknowledged and duly attested.” (§66).

The obligation to facilitate does obviously not mean the obligation to grant, and Member States are entitled to set their own, different criteria so there is no ‘mutual recognition obligation’ requirement.

In the present case, the Advocate General concluded at (§69) that the Court should answer the first three questions as:

–        Article 21(1) and Article 45 TFEU must be interpreted as meaning that, where a Union citizen has created or strengthened his family life during the exercise of residence rights in another Member State, the facilitation regime provided for in Article 3(2) of Directive 2004/38 is applicable by analogy to the partner with whom the Union citizen has a durable relationship upon the return of the Union citizen to his Member State of origin. As a result, that Member State must facilitate, within the meaning of Article 3(2) of the directive, in accordance with its national legislation, the entry and residence of the partner with whom the Union citizen has a duly attested durable relationship.

–        When a Union citizen returns to his Member State of origin after having exercised his residence rights in another Member State where he has created or strengthened his family life with a partner with whom he has a duly attested durable relationship, Article 21(1) and Article 45 TFEU require that, when deciding on the entry and residence of that partner, the Member State of origin of the Union citizen undertakes an extensive examination of their personal circumstances and justify any refusal of entry or residence, pursuant to Article 3(2) of Directive 2004/38.

Impact

The 2016 Regulations may need amending again if the CJEU follows the AG Opinion in relation to Regulation 9.

The second blog about this case addresses the other important element of Banger – the right to an effective remedy of extended family members.

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