In a judgement delivered on Thursday 12 July (Case C-89/17), the European Court of Justice held that when an EU citizen returns to his member state of origin, the latter must facilitate the entry and residence of the non-EU partner with whom that citizen has a durable relationship but that granting a residency permit is not automatic.
Mr Philip Rado, a British national and Rozanne Banger, a South African national, moved to the Netherlands in 2010. Ms Banger was granted a residence card in her capacity as an extended family member of Mr Rado, in accordance with the 2004/38 directive on the freedom of movement of EU citizens. In 2013 the couple moved to the United Kingdom but Ms Banger’s application for a residence card was rejected by the Secretary of State for the Home Department because she was not married to Mr Rado.
The British courts requested that the Court of Justice to ascertain whether European case-law (C-370/90) applied. According to the Singh judgement, when EU citizens return to their Member State of origin after having resided in another Member State, their family members have the right to enter and reside in the first Member State and must enjoy at least the same rights as would be granted to them under EU law in another Member State.
In its ruling, the Court takes into account the arguments put forward by the Advocate General (see EUROPE 11998).
It is of the opinion that an EU citizen would be discouraged from exercising his right of residence if he is uncertain whether he will be able to continue in his Member State of origin a family life which has been created or strengthened, with the non-EU national, in the host Member State.
The Court holds that, in a situation such as the one at issue, the directive must be applied by analogy. Accordingly, Article 21 TFEU requires the Member State of which an EU citizen is a national to facilitate the provision of a residence authorisation to the non-EU partner with whom that EU citizen has a durable relationship, where the EU citizen has exercised his right of freedom of movement and returns with his partner to the Member State of which he is a national.
Although there is an obligation to grant a certain advantage to nationals from non-EU countries in this situation, Member States are not automatically required to accord a right of entry and residence to non-EU nationals.
Any refusal decision to grant right of residency must be founded on an extensive examination of the applicant’s personal circumstances and be justified by reasons. Non-EU nationals must have available to them a redress procedure in order to challenge the decision to refuse them a residence authorisation whereby the national court must be able to ascertain whether the refusal decision is based on a sufficiently solid factual basis and whether the procedural safeguards were complied with. (Original version in French by Mathieu Bion)