EU Magistrate Favors Rights Expansion for Unmarried Partners

(CN) – Even the unmarried partner of an EU citizen should be afforded entry and residence when the citizen returns to his member state of origin, a magistrate advised the European Court of Justice to rule Tuesday.

Advocate General Michal Bobek issued the opinion this morning in response to a challenge by South African native Rozanne Banger.

In 2013, Banger followed her partner of five years, Philip Rado, to the United Kingdom where he had been born.

The couple would marry a year later but UK officials rejected her application for a residence card on the grounds that they were unmarried.

Relying on 1992 precedent regarding an Indian national named Surinder Singh, whom the UK tried to deport deport after he and his British national wife divorced, Banger sought relief from the UK court system.

An appeals court for UK immigration cases in turn asked the European Court of Justice to weigh in about how to interpret the free-movement directive.

Bobek, an adviser to this Luxembourg-based court, recommended Tuesday that the durable partners of EU citizens are entitled to the same treatment that extended family members of EU citizens receive.

The 25-page opinion does not shy away from hypothetical matters of the heart.

“Could it really reasonably be suggested that, for example, a recent university graduate, who is perhaps considering a move to another member state, will be influenced in his decision-making in that regard by thinking that perhaps in that member state (or second or third member state), he might meet the love of his life,” Bobek wrote, “and that later, assuming that the love of his life was indeed for life, perhaps he might like to return to his home member state with that person permanently, but on realizing that on his return that person would not be granted a right of residence, a discovery made after a careful and detailed study of the national immigration rules in his home member state, which might perhaps still be applicable in the near or distant future, he is then deterred from even exercising his free movement rights at all, and simply stays at home?

“Leaving aside scenarios in which the finding of one’s true love abroad is the driving force to exercise one’s free movement rights, the remote and hypothetical nature of such events and their (im)plausibility as a genuine basis for any normal person’s life choices do not perhaps form the most solid foundation for application by analogy (meaning an effective extension of the applicability beyond its clear wording) of Directive 2004/38 to returning union citizens.”  (Parentheses in original.)

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