UK Hammered for Denying Residency to Partner of Citizen

(CN) – The European Court of Justice ruled against U.K. authorities on Thursday for denying residency to a woman who had been the unmarried parter of a British national for five years.

Before Philip Rado moved in 2013 back to the U.K. with Rozanne Banger, a South African national, the pair had spent the last three years together in the Netherlands and the preceding two years in South Africa.

The Netherlands had granted Banger a residence card — treating her as a family member of Rado’s under the EU directive on the freedom of movement of EU citizens and their family members — but U.K. legislation transposing the same directive says that a non-EU partner must either be the spouse or civil partner of the British national to qualify as his family member.

A U.K. immigration court put Banger’s ensuing challenge on hold to get input on the relevant law from the European Court of Justice.

On Thursday, the Fourth Chamber of that Luxembourg-based court highlighted analogous case law where non-EU nationals who were family members of an EU citizen were accorded a derived right of residence in the member state of which that citizen is a national.

“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 authorization 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, returns with his partner to the member state of which he is a national in order to reside there,” the ruling states.

Another finding that the court made was that refusing residency to a partner like Banger here “must be founded on an extensive examination of the applicant’s personal circumstances and be justified by reasons.”

The U.K. court also asked whether the third-country nationals envisaged in Article 3(2) of Directive 2004/38 are entitled to a redress procedure so that they can dispute a decision that refused them residence.

Answering in the affirmative, the Court of Justice noted that the safeguards to which these third-country nationals are entitled “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.”

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