Advocate-General’s Opinion in the case of Banger delivered


Further to our previous updates, the Advocate-General has today delivered his Opinion in Secretary of State for the Home Department v Banger Case C-89/17.  Judgment is expected to follow in approximately 3-6 months.

Anthony Metzer QC and Sanaz Saifolahi, who represent Ms Banger, attended the Court in Luxembourg on 17th January 2018 for the oral hearing.


On the first three questions in the Opinion, the Advocate-General agreed with the submissions made on behalf of Ms Banger. Article 3 (2) of the Directive is applicable by analogy to a durable partner of a Union Citizen on return to the Member State of origin and the Member State must facilitate the entry and residence of that partner. In addition, an extensive examination of personal circumstances is required.

On the fourth and final question concerning judicial remedies, the Advocate General stated that Article 3(2) must be interpreted as requiring effective judicial redress, in line with Article 47 of The Charter, and that it is for the National Court to determine whether our system of Judicial Review complies with this requirement and the procedural safeguards of Article 6(1) ECHR. The Advocate General agreed with the submissions made on behalf of Ms Banger that “(i)n order to determine whether the limits of the discretion set by the directive have been respected, national courts must be able to review all the procedural aspects as well as the material elements of the decision, including its factual basis.” [109]

First three Questions for Reference concerning the application of the Surinder Singh principle to an unmarried partner of British national

In relation to the first 3 questions for Reference, the Advocate General outlined at paragraph 33:

“33.  In the present case, the United Kingdom Government has argued that the principles that emanate from the case-law outlined above concern exclusively the rights of entry and residence under Directive 2004/38. According to Article 3(1) of the directive, those rights are only enjoyed by the family members who fall under the list in Article 2(2) of the directive, but not by ‘extended family members’ under Article 3(2). Therefore, an application by analogy based on the dissuasive effect of the denial of residence rights for family members on the exercise of free movement rights by Union citizens would not be justified in the present case, which concerns an unmarried partner, who, according to Article 3(2) is not entitled to such a residence right.

34.  I do not agree.”

The interim conclusion on this issue appears at paragraph 69:

“69.      As a result, I propose that the first three questions posed by the referring court be answered as follows:

  • 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.”

Question 4 – Right to an effective remedy

The Advocate General states that this issue is for national law to determine. The obligations and requirements of an effective judicial remedy for extended family members under EU law is outlined in detail:

“81.However, what this Court could provide and in the spirit of cooperation perhaps should provide, in order to assist the   national court with regard to the issues raised by the fourth question, is clarification on the obligations and requirements under EU law with regard to an effective remedy in the   context of an application by analogy of Article 3(2) of Directive 2004/38. (49)

82.With this aim in mind, in this section, I will first examine the procedural safeguards embedded in the directive itself (1), and then turn to the general requirements emanating from Article 47 of the Charter (and from the principles of effectiveness and equivalence) (2). Finally, I will examine the implications of the fundamental right to an effective remedy with regard to the specific context of Article 3(2) of the directive (3).”

 At paragraph 88 of the Opinion, the Advocate General outlines:


“88.  There is, however, quite a strong argument in favour of a broader scope of Article 15 of Directive 2004/38. That provision states that procedural safeguards shall apply ‘to all decisions restricting free movement of Union citizens and their family members’. Thus, although it could be said that extended family members are not covered by the notion of ‘family members’ contained in that provision, a refusal of a residence card to those persons could in fact be rather easily classed as a ‘restriction’ to free movement rights of the Union citizen himself, who is clearly covered.”

111. The elements that must be available for judicial scrutiny flowing from Article 3(2) of the directive are, beyond the requirement of facilitation, essentially threefold: that the decision to be reviewed must be the result of an  extensive examination (i), which then logically must be reflected in the             reasons given for potentially justifying any denial of entry or residence (ii). Furthermore, that examination must be done on the basis of personal circumstances, which includes the relationship with the Union citizen and the situation of dependence (iii).

112.  All those elements must be reviewable by a court or tribunal. A national court must have the competence to proceed, if it deems necessary, to the verification of the key relevant facts serving as the basis of the administrative decision. (81) It must be possible to gauge whether the reasons adduced by the administration duly correspond to the criteria established by national law, within the limits imposed by Directive 2004/38. It must also be possible to ascertain the sufficiency and adequacy of the justification. In particular, it must be possible to assess whether the specific personal circumstances relevant to the pertinent criteria have been duly examined.”

115.  In the light of the foregoing considerations, it is my view that the answer to the fourth preliminary question should be that Article 3(2) of Directive 2004/38 must be interpreted as requiring effective judicial review of decisions denying entry or residence to extended family members, in line with Article 47 of the Charter. It is for the competent national court to ascertain whether the system of judicial review available under national law complies with that requirement.

Judgment is expected in approximately 3-6 months.