Opinion of Advocate General Bobek delivered on 10 April 2018.

• Jurisdiction: European Union
• Celex Number: 62017CC0089
• ECLI: ECLI:EU:C:2018:225
• Date: 10 April 2018
• Docket Number: C-89/17
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 10 April 2018(1)

Case C‑89/17

Secretary of State for the Home Department

v

Rozanne Banger

(Request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom))

(Reference for a preliminary ruling — Citizenship of the Union — Article 21 TFEU — Return of a Union citizen to the Member State of which that citizen is a national after having exercised free movement rights in another Member State — Right of residence of a third-country national who is a member of the extended family of a Union citizen — Application by analogy of Directive 2004/38/EC — Article 3(2)(b) — Obligation to facilitate, in accordance with national legislation, entry and residence for the partner with whom the Union citizen has a durable relationship — Right of appeal — Scope of judicial review — Article 47 of the Charter of Fundamental Rights of the European Union)

I. Introduction

1. Ms Rozanne Banger is from South Africa. Her partner Mr Philip Rado is a United Kingdom national. They lived together in the Netherlands, where Ms Banger was issued a residence card as an unmarried partner of a Union citizen.

2. In the Netherlands Ms Banger was granted a residence card pursuant to Article 3(2) of Directive 2004/38/EC. (2) That provision states that the host Member State shall facilitate entry and residence, in accordance with national law, of other persons not included in Article 2(2) of the directive as family members. That includes the partner with whom the Union citizen has proved to have a durable relationship.

3. The couple later decided to move to the United Kingdom. The competent authorities there rejected Ms Banger’s residence card application on the ground that she was not married to her partner.

4. There is also a regime in the United Kingdom which aims at transposing Article 3(2) of Directive 2004/38. However, that Member State is the home Member State of Mr Rado. Ms Banger could not therefore benefit from that regime because it only applies to ‘extended family members’ of Union citizens from other Member States, and not ‘extended family members’ of nationals of the United Kingdom who return to that Member State after having exercised their residence rights in another Member State.

5. It is in that context that the Upper Tribunal (Immigration and Asylum Chamber), London, United Kingdom refers questions about essentially two issues to this Court.

6. First, are Member States obliged to issue a residence authorisation, or to facilitate the residence of an unmarried partner of a Union citizen who accompanies a Union citizen on his return to his home Member State? If yes, the referring court enquires whether the basis for such an obligation lies in Directive 2004/38, or in the principles established by the Court in the judgment in Singh. (3)

7. Second, the referring court wishes to ascertain the scope of judicial protection required under EU law for situations covered by Article 3(2) of the directive in the particular context of the law of England and Wales, which, depending on the type of claim in question, provides for different avenues of judicial protection: an appeal procedure and judicial review. On the facts of the present case, where the complaint is brought by an ‘extended family member’, judicial review is the only available route for a legal challenge.

II. Legal framework

A. EU law

8. According to recital 6 of Directive 2004/38:

‘In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.’

9. Article 2 of that directive contains the following definitions:

‘1. “Union citizen” means any person having the nationality of a Member State;

2. “Family member” means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

…

3. “Host Member State” means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.’

10. Article 3 of the directive states:

‘1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

…

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’

11. According to Article 15(1) of the directive, the ‘procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health’.

12. Article 31 of the directive reads as follows:

‘1. The persons concerned shall have 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.

...

3. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.

...’

B. United Kingdom law

13. The Immigration (European Economic Area) Regulations 2006 [SI 2006/1003] (‘the EEA Regulations’), transpose Directive 2004/38.

14. Regulation 8 contains provisions regarding ‘extended family members’:

‘(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

…

(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.

(6) In these Regulations “relevant EEA national” means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).’

15. Regulation 9, apparently applicable at the material time, set out the following rules with regard to family members of United Kingdom nationals:

‘(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the British citizen were an EEA national.

(2) The conditions are that—

(a) the British citizen is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and

(b) if the family member of the British citizen is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the British citizen returned to the United Kingdom.

…’

III. Facts, procedure and the questions referred

16. Ms Banger is a national of South Africa. Her partner, Mr Rado, is a United Kingdom national. From 2008 to 2010, they lived together in South Africa. In May 2010, they moved to the Netherlands, where Mr Rado accepted a job position. Ms Banger was granted a residence card by the Netherlands authorities as an extended family member of a Union citizen on the basis of the national provisions transposing Article 3(2) of Directive 2004/38.

17. In 2013, the couple decided to move to the United Kingdom. Ms Banger’s application for a residence card in the United Kingdom was refused by the Secretary of State for the Home Department (‘the Secretary of State’) on the grounds that she was not married to Mr Rado. That decision was based on Regulation 9 of the EEA Regulations, which provides for the rights of family members of United Kingdom nationals who return to that Member State after having exercised free movement rights. According to the decision issued by the Secretary of State on the basis of that provision, to qualify as a family member of a British citizen, the applicant must either be the spouse or civil partner of a British citizen. (4)

18. Ms Banger challenged that decision before the First-tier Tribunal. That tribunal held that Ms Banger, as the non-EU partner of a British citizen having exercised his free movement rights and returning to his Member State of origin, enjoyed the benefits arising under the ‘Singh’ ruling. (5)

19. The Secretary of State was granted permission to appeal to the Upper Tribunal (the referring court) on the ground...