On 12thJuly 2018 the CJEU delivered its Judgment in SSHD v Banger. A summary of the facts and the questions referred to the CJEU can be found here.
In accepting all of the arguments presented on behalf of Ms Banger, the CJEU found, for the first time, that the Surinder Singh rationale applies to the unmarried partner of a British national. The legal basis for this finding can be located in Article 21 TFEU. The Court found that Article 21 TFEU applies to extended family members by analogy.
In addition, the Court found that a refusal of a residence card must follow as a result of an extensive examination of the applicant’s personal circumstances and must be justified by reasons. Finally, on the issue of appeal rights, the Court determined that the redress procedure must enable a full assessment of the facts and involve an extensive examination of the applicant’s personal circumstances.
THE ANSWERS TO THE QUESTIONS REFERRED
To the questions referred, the CJEU answered:
“1. 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/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, returns with his partner to the Member State of which he is a national in order to reside there.
2. Article 21(1) TFEU must be interpreted as meaning that a decision to refuse a residence authorisation to the third‑country national and unregistered partner of a Union citizen, where that 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, must be founded on an extensive examination of the applicant’s personal circumstances and be justified by reasons.
3. Article 3(2) of Directive 2004/38 must be interpreted as meaning that the third-country nationals envisaged in that provision must have available to them a redress procedure in order to challenge a decision to refuse a residence authorisation taken against them, following which the national court must be able to ascertain whether the refusal decision is based on a sufficiently solid factual basis and whether the procedural safeguards were complied with. Those safeguards include the obligation for the competent national authorities to undertake an extensive examination of the applicant’s personal circumstances and to justify any denial of entry or residence.”
The refusal of Ms Banger’s residence card is clearly incompatible with Article 21 TFEU. In addition, given that Regulation 9 does not extend to unmarried partners in its previous and current form, an amendment of the Immigration (European Economic Area) Regulations is anticipated.
On the issue of appeal rights, the question of whether Judicial Review does enable a review of the facts as well as the legal basis of a decision will now need to be tested in the UK Courts. At paragraph 51 of the Judgment:
“As regards its review of the discretion enjoyed by the competent national authorities, the national court must ascertain in particular whether the contested decision is based on a sufficiently solid factual basis. That review must also relate to compliance with procedural safeguards, which is of fundamental importance enabling the court to ascertain whether the factual and legal elements on which the exercise of the power of assessment depends were present (see, by analogy, judgment of 4 April 2017,Fahimian, C‑544/15, EU:C:2017:255, paragraphs 45 and 46). Those safeguards include, in accordance with Article 3(2) of Directive 2004/38, the obligation for those authorities to undertake an extensive examination of the applicant’s personal circumstances and to justify any denial of entry or residence.”
Judicial Review is a review of the lawfulness of a decision and is a challenge to the decision making process. It is difficult to see how Judicial Review could enable an extensive examination of the facts and the law and thus how it could be an adequate remedy. The full judgment of the Court can be read here.
Anthony Metzer QC and Sanaz Saifolahi