In Banger (C-89/17, EU:C:2018:570), the CJEU recently held that the historic decision in Surinder Singh (C-370/90, EU:C:1992:296) applies to 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". According to the court, the refusal of such a residence authorisation to the non-EU partner must be based on an extensive examination of the non-EU partner's personal circumstances and be justified by reasons. On the issue whether it is really compatible with the Citizens' Directive (2004/38/EC) to operate a rule of national law which precludes an appeal to a court or tribunal against a decision refusing to issue a residence card to a person claiming to be an EFM, the CJEU held that article 3(2) makes available a redress procedure whereby a national court must be able to evaluate whether the refusal decision rests on "a sufficiently solid factual basis" and whether the decision-maker complied with the requisite procedural safeguards governing any denial of entry or residence. Rozanne Banger, a South African, and Philip Rado, a British national, lived together from 2008 to 2010 in South Africa. Rado accepted a job in the Netherlands and they moved there. Banger was granted a residence card pursuant to the domestic provisions transposing article 3(2) of the Directive.
The couple then moved to the UK in 2013 where Banger was refused a residence card since they were not a married couple. The refusal relied on regulation 9 of the Immigration (European Economic Area) Regulations 2006 whereby rights are conferred on the family members of UK nationals returning to their home state after having exercised free movement rights pursuant to the ruling in Surinder Singh (C-370/90, EU:C:1992:296). Singh and further principles developed in case law mean that when EU citizens return to their member state of origin after having exercised a right of residence in another member state, their family members also have the right to enter and reside in the first member state and must enjoy at least the same rights as would be granted to them under EU law in another member state. The logic behind Singh is simple. An EU citizen might otherwise be deterred from leaving home in order to undertake economic activity in another member state if, on his return, the conditions of his entry and residence were not at least equivalent to those which he would enjoy in the territory of another member state.
The decision-maker applied regulation 9 to Banger and found that in order to qualify as a family member of a British citizen, the applicant must either be the spouse or civil partner of a British citizen. The question therefore arose whether the refusal of residence was maintainable on the ground that the parties were unmarried.
The Reference
The FTT held on appeal that her situation was covered by the principle in Singh. However, the Home Office appealed to the UT on the ground that Singh involved a married couple whereas the present couple were unmarried.
In Banger (Unmarried Partner of British National) [2017] UKUT 125 (IAC) McCloskey J and DUTJ Remington considered extending the scope of Singh to be a "relatively short step". But equally, doubt nevertheless existed in their minds about the legal basis for such an extension. The lack of clarity led them to query whether the principles in Singh also apply in circumstances where the non-EU national is not married to the EU citizen returning to his own member state.
The first three questions essentially concerned the legal basis and content of the member states' obligations in relation to the entry and residence of unmarried partners of "returning" EU citizens in a durable relationship. They also implicitly queried the content of those entitlements, i.e. whether there is an obligation to issue such an authorisation or merely to facilitate it. The third question placed that issue centre stage by specifically asking whether article 3(2) permits the adoption of a refusal decision that is not based on an extensive examination of the applicant's personal circumstances and is not justified by adequate or sufficient reasons. The fourth question related to the scope of judicial review required with regard to EFMs, i.e. "other family members" in article 3(2)(a) and "the partner with whom the Union citizen has a durable relationship, duly attested" under article 3(2)(b).
Adequacy of Judicial Review
Banger submitted that judicial review was not an effective remedy for the purposes of the Directive and article 47 of the Charter of Fundamental Rights of the European Union. It was an unsatisfactory method of reviewing a decision refusing to grant a residence card because it was unconcerned with the decision itself and examined the decision-making process. Costs and scope of assessment were live issues for Banger. She stressed that judicial review could be used only to challenge a decision's legality on limited grounds. In that regard, the fundamental issue for the CJEU was whether judicial review procedures comply with EU law requirements or whether it is necessary for EFMs to have access to the system of statutory appeals. Overall, judicial review in her case could only succeed on the ground of unreasonableness and therefore the scope of the challenge was reduced and factual elements received no coverage.
The UK stressed that judicial review fully complies with EU law because it does not require that a particular statutory right of appeal must be provided by the member states. Instead, it claimed that requirement is imposed for states to provide a full review on the merits of decisions empowering the court or tribunal to substitute the original decision-maker's assessment with a judicial decision. Moreover, relying on Kiarie and Byndloss [2017] UKSC 42 (see here), the UK also submitted that judicial review fully complies with those standards because the public law litigation procedure dually permits an examination of the legal basis of the decision and also factual errors and proportionality.
Advocate General's Opinion
AG Bobek opined (discussed here) that where an EU citizen returns to his home state, 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. He said that the requirement to facilitate does not confer an automatic right of residence but it does require the member state to undertake an extensive examination of the personal circumstances of the third country national and justify any refusal of entry or residence.
Observably, free movement produces different situations than those experienced by "static citizens" and Garcia Avello (C-148/02, EU:C:2003:539) cautions against treating the two situations in the same way. Applying S and G (C-457/12, ECLI:EU:C:2014:136), and Lounes (C-165/16, EU:C:2017:862, discussed here and here), AG Bobek explained that the CJEU has clearly recognised "that the derived right of residence of family members of Union citizens is instrumental in ensuring the free movement rights of the Union citizens themselves."
AG Bobek was highly suspicious of the dubious approach formulated in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC). Nonetheless, 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. He proposed that the CJEU should rule that Banger is entitled, in line with a combined interpretation of free movement rules in the Treaties and the Directive, to have an extensive examination of her application to reside in the UK. Overall, justifications must be provided for any denial of entry or residence on the basis of that examination and coverage must be provided to her specific personal circumstances, including her relationship with the EU citizen.
The Court of Justice (Fourth Chamber)
On the reference, the CJEU applied its decision in Coman (C-673/16, EU:C:2018:385, discussed here and here) and it also considered its earlier ruling in Rahman (C-83/11, EU:C:2012:519). As in Coman the court noted that article 3(1) of the Directive, in keeping with a literal, contextual and teleological interpretation, governs only the conditions determining whether an EU citizen can enter and reside in member states other than his own. It does not, however, confer a derived right of residence on non-EU family members of the EU citizen in his own home state. Because they lived together and were not married, the court acknowledged that the present couple were distinct from the situation in Singh. Instead Banger was "the unregistered partner".
Yet, as explained recently in Coman, ineligibility under the Directive itself did not mean that non-EU national family members did not qualify for a derived right of residence under article 21(1) TFEU. Equally, in view of O and B (C-456/12, EU:C:2014:135), the approach was grounded in the clear principle that without such a right the EU citizen would be discouraged from leaving home and utilise his right under article 21 TFEU if uncertainty looms over whether he will be able to continue in his home state a family life which has been created or strengthened, with his non EU family member in the host member state during a genuine period of residence. Pursuant to the case law, the grant of that derived right of residence should not, in principle, be stricter the conditions in the Directive for granting such a right of residence to a non-EU family member in a case where the EU citizen has exercised his right of freedom of movement by becoming established in a member state other than his own.
Accordingly, although the Directive does not provide coverage to the EU citizen's return to the home state so as to reside there, it should be applied by analogy. Article 3(2)(b) relates specifically to the partner with whom the EU citizen has a durable relationship that is duly attested and so the host member state must, in accordance with its national legislation, facilitate entry and residence for that partner. Applying Rahman the court reiterated that the member states are not required to accord a right of entry and residence to non-EU nationals having a durable relationship with an EU citizen. Rather they are only under an obligation to confer a certain advantage on applications submitted by such persons in comparison to applications made by other persons from non-EU countries.
Therefore, in the present context, the Directive must be applied by analogy in relation to the conditions in which the entry and residence of third-country nationals envisaged by its mechanics must be facilitated. The court rejected the UK's argument that under para 63 of the O and B judgment granting of a derived right of residence in the member state of origin was restricted only to third-country nationals who enjoyed the status of a "family member" within the meaning of article 2(2) of the Directive.
The CJEU approved AG Bobek's view in para 35 of his opinion that whilst it is correct to say that recent CJEU authorities involving non-EU family members of EU citizens have concerned the status of "family members" under article 2, this alone could not be inverted and interpreted as an intention to constrict the application of the established principles exclusively to "family members". So nothing in the earlier cases permits sidestepping the obligation to facilitate the entry and residence of other family members in accordance with article 3(2).
Overall, the Directive relates specifically to the partner with whom the EU citizen has a durable relationship and provides that the host member state must facilitate entry and residence for that partner. Therefore, article 21 TFEU requires the EU citizen's member state of nationality to facilitate the provision of a residence authorisation to the non-EU partner with whom that EU citizen has a durable relationship, where the EU citizen has exercised his free movement rights and returns to his own member state with his partner in order to reside there. Specifically in relation to the first two questions, the CJEU held:
35. … that article 21(1) TFEU must be interpreted as requiring the member state of which a Union citizen is a national to facilitate the provision of a residence authorisation to the unregistered partner, a third-country national with whom that Union citizen has a durable relationship that is duly attested, where the Union citizen, having exercised his right of freedom of movement to work in a second member state, in accordance with the conditions laid down in Directive 2004/38, returns with his partner to the member state of which he is a national in order to reside there.
On the third question, since the Directive applies by analogy to a returning EU citizen, the court concluded that refusing residence authorisation to the non-EU unregistered partner of an EU citizen must be based on an extensive examination of the applicant's personal circumstances and be justified by reasons.
Next, the fourth question or the Sala issue led the CJEU to make wide-ranging points on the provisions of the Directive. The court held that persons such as Banger must have access to a redress procedure so as to challenge the refusal of residence authorisation. In essence, the national court must be able to evaluate whether the refusal decision is based on a sufficiently solid factual basis and whether the procedural safeguards in the Directive have been complied with.
Notably, under article 15(1), the procedures laid down in articles 30 and 31 of the Directive apply by analogy to all decisions restricting free movement of EU citizens and their family members on grounds other than public policy, public security or public health. Moreover, article 31(1) provides that they must have also 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.
Somewhat problematically, article 3(2)(b) is not expressly mentioned in these provisions. But as AG Bobek had observed earlier, the concept of "family members" is used in other provisions also to include the persons envisaged in article 3(2). Particularly, article 10 concerns the issuance of residence cards to "family members of a Union citizen" but article 10(2)(e) and (f) mention the documents to be presented for a residence card to be issued to the persons in article 3(2)(a) and (b). Moreover, article 8(5) relates to documents to be presented for a registration certificate to be issued to "family members" but article 8(5)(e) and (f) mention the persons in article 3(2)(a) and (b).
Reiterating the Rahman analysis on extensive examination and personal circumstances, the CJEU applied ZZ (France) (C-300/11, EU:C:2013:363) to remind us that the Directive's provisions must be interpreted in a manner which complies with the requirements flowing from article 47 of the CFR. Moreover, as seen in para 41 of Gaydarov (C-430/10, EU:C:2011:749), persons in article 3(2)(a) and (b) must importantly have access:
48. … to an effective judicial remedy against a refusal permitting a review of the legality of that decision as regards matters of both fact and law in the light of EU law.
49. Consequently, it must be found that the procedural safeguards provided for in article 31(1) of Directive 2004/38 are applicable to the persons envisaged in point (b) of the first subparagraph of article 3(2) of that directive.
As to the content of those procedural safeguards, persons falling within article 3(2) are entitled to a review by a court of whether the national legislation and its application are within the limits of the discretion set by the Directive. On the issue of the national court's review of the discretion enjoyed by the competent national authorities, it must decide "in particular whether the contested decision is based on a sufficiently solid factual basis." The court highlighted by analogy paras 45 and 46 of Fahimian (C-544/15, EU:C:2017:255) to stress that the review must also relate to compliance with the procedural safeguards and is crucial for the court to "ascertain whether the factual and legal elements on which the exercise of the power of assessment depends were present." Therefore the safeguards, pursuant to article 3(2), include the duty for the national authorities to conduct an extensive examination of the applicant's personal circumstances and to justify any denial of entry or residence.
All this points to a right of appeal against refusal being available to EFMs but the point may yet again need to be tested domestically in court. For example, ZZ (France) went back into the Court of Appeal after the CJEU provided its answers to the questions referred.
Comment
After Sala, judicial review remained the only available remedy for EFMs against the refusal of entry or residence because the Upper Tribunal unexpectedly and wrongly removed rights of appeal from such persons. In Sala the UT interpreted, albeit wrongly, Rahman to mean that the Directive does not warrant a full merits-based appeal and judicial review suffices to ensure that the decision-maker has "remained within the limits of the discretion set by [the] Directive".
By virtue of this judgment, the court seems to have ended the Sala controversy for good. AG Bobek had been suspicious of the approach in Sala but he had not elaborated an analysis quite like the court. Unlike the court, his approach was not, for example, steered by the judgments in ZZ (France) and Gaydarov. But of course, like the court itself, AG Bobek did clearly also conclude at para 109 that a redress procedure against refusal must be able to confirm that the decision was made on a "sufficiently solid factual basis".
Irwin LJ held in Khan [2017] EWCA Civ 1755 (discussed here) that Sala was wrongly decided. Yet the UK insisted that Khan was irrelevant to the outcome in Banger because it concerned the Immigration (European Economic Area) Regulations 2006 which were replaced by the Immigration (European Economic Area) Regulations 2016. Agreeing with the Commission the UK emphasised that EU law requires a full review of the decision, including consideration of the facts and proportionality. Interesting in the result is the way the answer to the fourth question affects the existing environment where EFMs were denied rights of appeal first under the 2006 regulations and then even under the later 2016 Regulations despite the decision in Khan.
When making the reference to the CJEU on Kefalah children in SM (Algeria) [2018] UKSC 9 (discussed here), the Supreme Court held that the decision in Sala is to be deprecated and that Irwin LJ's reasoning in Khan must be followed on the interpretation of regulation 26 of the 2006 Regulations. Indeed, the Justices had no doubt that the outcome in Khan is correct "and that Sala should be overruled."
As for the reference in Banger, Lady Hale explained that the Justices keenly awaited the response to the four questions referred, especially the issue regarding the compatibility with the Directive of a national rule precluding 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 an EFM. Significantly, 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. Thus, irrespective of the ratio of Khan, the question was not moot and the CJEU's answer 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.
On the Surinder Singh point, which in light of the CJEU's analysis also includes EFMs, the so-called Draft Withdrawal Agreement does not provide coverage to families in such circumstances but the new EU Settlement Scheme (discussed here) does allow them access to permanent status. On the positive side, in light of the ruling in Banger, the Home Office will no longer be able to refuse Surinder Singh rights to EFMs.
Finally, the UK dragged its feet for nine months in implementing the judgment in Lounes. Indeed, at that rate it appears that the present ruling will probably only be respected after a very long period of delay. If anything, the Home Office will again probably resort to extracting pleasure by settling scores for its loss in Banger by indulging in unnecessary delay to inflict even greater suffering and unfairness than it has already caused.