The Court of Justice of the European Union (CJEU) has ruled on whether the cases of durable partners of British citizens returning to the UK should be dealt with under EU rules as opposed to national law, as contended by the UK authorities.

The case concerns Rozanne Banger, a South African national, and her partner, Philip Rado, a British citizen. From 2008 to 2010, they lived together in South Africa. In 2010, they moved to the Netherlands, where Rado accepted a job. Banger was granted a residence card by the Dutch authorities as an extended family member of a European Union citizen. In 2013, the couple decided to move to the UK. Even though they subsequently married in Britain, the Home Office refused Banger’s application for a residence card on the grounds that she had not been married to Rado whilst in the Netherlands.

The decision was based on the UK’s EEA Regulations, the national provision setting out the rights of family members of British nationals who return to the country after having exercised EU’s free movement rights.

The Home Office position was based on a very restrictive reading of the 1992 CJEU case of Surinder Singh. In that case, the European Court had held that the status of family members of returning residents who had exercised treaty rights in the EU should not be decided under national immigration law, but under the more liberal EC law provisions. In the case of Surinder Singh, the EU national and the third country national were married. In the case of Banger, the Home Office tried to argue that the CJEU judgment only applied to spouses or civil partners, but not to durable partners or other extended family members.

Advocate General’s opinion

Advocate General Michal Bobek did not agree with the Home Office’s restrictive interpretation. Whilst admitting that CJEU jurisprudence addressing the rights of returning nationals has been dealing with the rights of spouses (as opposed to extended family members), he stated that he did

not think that this fact should be turned around and interpreted as an intention to limit that case-law solely to ‘family members’. An equally plausible explanation (indeed, from my point of view, a much more plausible explanation) is that those cases referred solely to family members because, quite simply, they only concerned family members.

He stressed that the overall logic underlying the Surinder Singh case applied equally to extended family members, in particular unmarried partners, taking into account the range of forms of cohabitation and changing social mores. He refuted the idea that only spouses should benefit from EU rights acknowledged in the Surinder Singh case and firmly rejected “formal box-based generalisations” in assessing who is a close family member and hence should benefit from the ruling.

The reasons for allowing extended family members (including durable partners) of returning residents to benefit from EC law provisions is based on the premise that EU citizens would be discouraged from moving within the EU if those close to them would be barred from accompanying them on their return to their home country. Also, in case relationships were established in other European countries, a refusal to allow the extended family members to accompany the EU citizens back to their home country would constitute a retrospective penalisation for the person (and his or her family members) for having exercised European treaty rights, i.e. the right to move and live in another European country in the first place.

The Advocate General also stressed that EU citizens who have not exercised their treaty rights (i.e. have never left their home country to work or study in another European country) should not be treated the same as those who have, as otherwise:

the danger […] is that free movement would result in the granting of a one-way ticket. It would lead to the perpetuation of expatriation. This sits uncomfortably with the right to move and reside freely within the European Union.

He hence concluded that “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.”

AG Bobek: where an EU citizen returns to his MS of origin, that MS must facilitate the entry and residence of the citizen’s non-EU partner with whom he has created/strengthened family ties in another MS https://t.co/mgbSrzXMp1

— EU Court of Justice (@EUCourtPress) April 10, 2018

Ruling by the European Court

The EU Court delivered its judgement on 12 July 2018. Whilst holding that the EU Directive on free movement did not create rights in relation to family members of EU nationals returning to their own country, the Court stressed that a derived right of residence could nevertheless arise as its absence could create uncertainty and discourage citizens from moving to other EU countries.

The Court equally confirmed the “obligation” to confer a certain advantage to applications for entry and residence submitted by persons “who have a relationship of particular dependence with a Union citizen”. In order to comply with that duty, member states must examine extensively the personal circumstances of such family members and, in the event of refusal, justify the decision. The Court finally said that every applicant is entitled to a judicial review of whether the national legislation and its application satisfy those conditions.

Comment

In short, it is impermissible for the UK authorities – and those of any other EU country – to limit the benefits of the case of Surinder Singh only to the spouses (or other direct family members) of their own nationals who have exercised treaty rights in the EU. It is (and should equally be) applicable to all extended family members including durable partners.

What this also means, in the UK context, is that returning UK citizens should be treated no differently (and certainly not more restrictively as has been the Home Office’s practice to date) than any other EU citizens in the UK as concerns family reunion. Therefore the UK government would be well advised to amend the regulations without delay to give effect to the CJEU judgment.

Jan Doerfel, Direct Access Barrister.
Photo via Pixabay.

This article was published on 20 April 2018 and was updated on 31 July 2018 with the final judgement of the Court of Justice.