In Secretary of State for the Home Department v Rozanne Banger(C-89/17)]. the European Court of Justice takes a step forward on the path to enhance unregistered partners’ entry and residence rights.

The dispute in the main proceedings

Ms Rozanne Banger is a South African national. Her partner Mr Philip Rado (UK national) and Ms Banger have been in a relationship since January 2008 and have been co-habiting since December 2009. They have lived together initially in South Africa and then moved to the Netherlands in May 2010. Mr Rado was working in the Netherlands until the partners moved to the United Kingdom. In the Netherlands, Ms Banger was granted a work permit on the basis of her accepted relationship with Mr Rado.

Ms Banger’s application for a residence card in the United Kingdom was refused on the grounds that she was not married to Mr Rado.

The questions referred for a preliminary ruling

The questions referred to the Court of Justice for a preliminary ruling, can be summarised as follows:

Whether the principles set out in the ruling in [Singh, C‑370/90] apply mutatis mutandis to unmarried partners of “returning” Union citizens (i.e. Directive 2004/38/EC applies “by analogy”).

Alternatively, can unmarried partners of “returning” Union citizens, enforce rights of entry and residence directly derived from Directive 2004/38/EC (in the capacity of “other family members”)?

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 another family member compatible with Directive 2004/38?

The ECJ’ ruling

The ECJ underlines that pursuant to settled case-law, in certain cases, third-country nationals, family members of a Union citizen, who are not eligible on the basis of Directive 2004/38 for a derived right of residence in the Member State of which that citizen is a national, can nevertheless, be accorded such a right on the basis of Article 21(1) TFEU (principle of deterrence).

In such cases, the Directive 2004/38 should be applied by analogy.

The ECJ observes that pursuant to Article 3(2) (b) Directive 2004/38, the host Member State must, in accordance with the national legislation, facilitate entry and residence to the partner with whom the Union citizen has a durable relationship that is duly attested.

The ECJ concluded that considering the discretion given to the Member States and the facilitation regime provided for by the EU law, Directive 2004/38, must be applied by analogy to unregistered partners of returning EU citizens.

Lastly, Article 3(2) of Directive 2004/38 must be interpreted as requiring effective judicial review of decisions denying entry or residence to “any other” family members of EU citizens.