CJEU Case C-89/17 / Opinion

Secretary of State for the Home Department v Rozanne Banger
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
10/04/2018
ECLI (European case law identifier)
ECLI:EU:C:2018:225
  • CJEU Case C-89/17 / Opinion

    Key facts of the case:

    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

    Outcome of the case:

    In the light of the foregoing, I propose that the Court reply to the questions raised by the Upper Tribunal (Immigration and Asylum Chamber), London (United Kingdom) as follows:

    Article 21(1) and Article 45 TFEU must be interpreted as meaning that, where a Union citizen has created or strengthened his family life during the exercise of residence rights in another Member State, the facilitation regime provided for in Article 3(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC is applicable by analogy to the partner with whom the Union citizen has a durable relationship upon the return of the Union citizen to his Member State of origin. As a result, that Member State must facilitate, within the meaning of Article 3(2) of the directive, in accordance with its national legislation, the entry and residence of the partner with whom the Union citizen has a duly attested durable relationship.

    When a Union citizen returns to his Member State of origin after having exercised his residence rights in another Member State where he has created or strengthened his family life with a partner, with whom he has a duly attested durable relationship, Article 21(1) and Article 45 TFEU require that, when deciding on the entry and residence of that partner, the Member State of origin of the Union citizen undertakes an extensive examination of their personal circumstances and justifies any refusal of entry or residence, pursuant to Article 3(2) of Directive 2004/38.

    Article 3(2) of Directive 2004/38 must be interpreted as requiring effective judicial review of decisions denying entry or residence to extended family members, in line with Article 47 of the Charter of Fundamental Rights of the European Union. It is for the competent national court to ascertain whether the system of judicial review available under national law complies with that requirement.

  • Paragraphs referring to EU Charter (original language)