Unmarried partners of ‘returning’ Union citizens

“With regard to who is effectively ‘close’ to a person, formal box-based generalisations are hardly appropriate”

In his Opinion delivered on 10 April [Secretary of State for the Home Department v Rozanne Banger(C-89/17)]., Advocate General Bobek takes a step forward on the path to enhance unmarried partners’ entry and residence rights.

The dispute in the main proceedings

Ms Rozanne Banger is a South African national. Her partner Mr Philip Rado (UK national) and Ms Banger have been in a relationship since January 2008 and have been co-habiting since December 2009. They have lived together initially in South Africa and then moved to the Netherlands in May 2010. Mr Rado was working in the Netherlands until the partners moved to the United Kingdom. In the Netherlands, Ms Banger was granted a work permit on the basis of her accepted relationship with Mr Rado.

Ms Banger’s application for a residence card in the United Kingdom was refused on the grounds that she was not married to Mr Rado.

The questions referred for a preliminary ruling

The questions referred to the Court of Justice for a preliminary ruling, can be summarised as follows:

• Whether the principles set out in the ruling in [Singh, C‑370/90] apply mutatis mutandis to unmarried partners of “returning” Union citizens (i.e. Directive 2004/38/EC applies “by analogy”).
• Alternatively, can unmarried partners of “returning” Union citizens, enforce rights of entry and residence directly derived from Directive 2004/38/EC (in the capacity of “other family members”)?
• Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be another family member compatible with Directive 2004/38?

Opinion delivered

Advocate General Bobek addresses the legal basis and the content of the obligations binding on Member States regarding the entry and residence of unmarried partners of ‘returning’ Union citizens. The Opinion reaches beyond the case at issue.

1 The present case

Mr Rado was exercising his right of free movement as a worker in the Netherlands and Mr Banger was granted a residence permit in the latter country on grounds of Article 3(2) Directive 2004/38.

As a consequence, in interpretation of Article 45 TFEU or on a subsidiary basis of Article 21(1) TFEU, in the present case, Article 3(2) Directive 2004/38 applies by analogy. However, it cannot lead to any automatic right of residence (can only reach as far as Article 3(2) itself could have reached, if it were directly applicable).

Ms Banger is entitled to have her application examined extensively, and to be provided with reasons justifying any denial of entry or residence on the basis of the results of that examination.

2 The principle of deterrence

AG Bobek observes that the potential to deter (i.e. the Union citizen will be discouraged from moving, as those personally close to him will be barred from joining him) is hardly compatible with the concept of “returning” citizens (unless the “other” family member already enjoys a status in the Member State of nationality of the Union citizen before moving abroad).

“It is rather difficult to be deterred from a certain course of action by something that I do not know exists at the time when the decision is taken or the future existence of which is at best rather uncertain.”

In context, AG Bobek, underlines a more appropriate justification already acknowledged in the context of prohibition of discrimination. The exercise of free movement shall not entail an ex post disadvantage for Union citizens (see inter alia judgment in D’ Hoop C‑224/98, EU:C:2002:432, paragraph 31).

3 The obligation to facilitate entry and residence

AG Bobek reminds that in Rahman and Others (C‑83/11), the Court has already clarified the content of the specific ‘facilitation regime’ applicable to other family members, pursuant to Article 3(2) Directive 2004/38/EC:

• absence of an automatic right of entry and residence.
• the obligation to enact a facilitation regime according to national law for which Member States enjoy a margin of discretion.
• the discretion is not unlimited.

Where on the one hand Article 3(2) is not sufficiently precise to enable an applicant for entry or residence to rely directly on that provision, on the other hand, Member States are given a wide but not unlimited discretion to interpret the concept of “facilitation”:

• AG Bobek takes the view that “with regard to who is effectively ‘close’ to a person, formal box-based generalisations are hardly appropriate”.
• The notion of ‘family’ under Article 8 of the ECHR ‘is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock’, in situations where children were born out of wedlock (see judgment of the ECtHR of 24 June 2010, Schalk and Kopf v Austria).
• AG Bobek takes the view that by having issued a residence card by another Member State, a durable relationship had already been acknowledged and duly attested (although such criterion cannot be imposed to Member States).

4 Effective judicial protection

Article 3(2) of Directive 2004/38 must be interpreted as requiring effective judicial review of decisions denying entry or residence to “any other” family members, in line with Article 47 of the Charter of Fundamental Rights of the European Union.