Update on the case of Banger and the reference made to the CJEU

News

Further to chambers’ update on the Order for Reference to the CJEU in the case of Banger (Unmarried Partner of British National) [2017] UKUT 00125 (IAC), Anthony Metzer QC and Sanaz Saifolahi, who represent Ms Banger, attended the Court in Luxembourg on 17th January 2018 for the oral hearing.

The Opinion was expected to be delivered on 15th March 2018 but this will now be delayed.  Chambers will update further as soon as a new date is communicated.

The Upper Tribunal had referred the following questions to the CJEU for a preliminary ruling under Article 267 TFEU:

  1. Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department(Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality?
  2. Alternatively, is there a requirement to issue or, alternatively, facilitate the provision of such residence authorisation by virtue of European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”)?
  3. Where a decision to refuse a residence authorisation is not founded on an extensive examination of the personal circumstances of the Applicant and is not justified by adequate or sufficient reasons is such decision unlawful as being in breach of Article 3(2) of the Citizens Directive?
  4. 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 an extended family member compatible with the Directive?