The Secretary of State for the Home Department v Rozanne Banger (Anonymity Direction Not Made)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal,Upper Tribunal Judge Rimington,THE HON. MR JUSTICE MCCLOSKEY,The President, The Hon. Mr Justice McCloskey |
| Judgment Date | 30 March 2017 |
| Neutral Citation | [2017] UKUT 125 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 30 March 2017 |
[2017] UKUT 125 (IAC)
The President, The Hon. Mr Justice Mccloskey
Deputy Upper Tribunal Judge Rimington
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Banger (Unmarried Partner of British National)
The Upper Tribunal has referred the following questions to the CJEU for a preliminary ruling under Article 267 TFEU:
(1) Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality?
(2) Alternatively, is there a requirement to issue or, alternatively, facilitate the provision of such residence authorisation by virtue of European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”)?
(3) Where a decision to refuse a residence authorisation is not founded on an extensive examination of the personal circumstances of the Applicant and is not justified by adequate or sufficient reasons is such decision unlawful as being in breach of Article 3(2) of the Citizens Directive?
(4) 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 an extended family member compatible with the Directive?
For the Appellant: Mr A Metzer QC and Ms S Saifolahi (of counsel), instructed by Breytenbachs Immigration Consultants
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer
This is the decision of the panel to which both members have contributed. While the application for permission to appeal was made by the Secretary of State we shall refer to the parties as they were described before the First-Tier Tribunal.
The Appellant is Rozanne Banger, a national of South Africa aged 50 years. The origins of the appeal lie in the decision of the Secretary of State to refuse the Appellant a residence card as confirmation of her right to reside with her partner in the United Kingdom under the Immigration (European Economic Area) Regulations 2006 (the “EEA Regulations”). The Appellant's partner, Mr Rado, is a British national with whom she formerly resided in South Africa, from January 2008. In May 2010, both migrated to The Netherlands, her partner having accepted a work assignment there. They lived together in The Netherlands for a period of some five years during which the Appellant was granted a Dutch residence card in her capacity of extended family member of an EU citizen.
Some three years later, they decided to move together to the United Kingdom. In advance, the Appellant applied to the Secretary of State for the Home Department (the “Secretary of State”) for a residence card. On 26 September 2013, this application was refused in the following terms:
“ Your application has been considered under regulation 9 which states that to qualify as the family member of a British citizen you must show that you are either the spouse or civil partner of the British citizen. An unmarried partner is not recognised as the family member of a British Citizen. You do not have a basis of stay in the United Kingdom under the Immigration (European Economic Area) Regulations 2006.”
[We shall describe this legislative measure as the “EEA Regulations”]
The battle lines between the parties were thereby drawn.
The Appellant applied to the First-tier Tribunal (“ FtT”) which allowed her appeal. In thus deciding the FtT gave effect to the unreported decision of the Upper Tribunal in SSHD v Kamila Santos Campelo Cain Appeal IA 40868/2013 (hereinafter “Cain”). The grant of permission to appeal is couched in the following terms:
“ The Secretary of State for the Home Department appeals against the decision of Judge of the First-tier Tribunal Hanes who, in a decision promulgated on 18 May 2015, and with the agreement of both representatives, allowed the Appellant's appeal against a refusal to issue her a residence card under the Immigration (European Economic Area) Regulations 2006 to the limited extent that it was remitted to the respondent for a lawful decision to be made.
The Secretary of State for the Home Department contends that, in holding that the Surinder Singh principles apply to unmarried partners, the Judge erred in law. The Secretary of State for the Home Department further contends that, in relying on an unreported decision of the Upper Tribunal ( Cain ……. Appeal Number IA/40868/2013), which apparently held that the Surinder Singh principle did apply to persons in a durable relationship), the Judge erred in law.”
While reliance on an unreported decision without supporting reasoning, as in this case, may constitute an error of law which is material, giving rise to a set aside order pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007, we prefer to approach this appeal on the footing that the main question of law raised is whether, in substance, the FtT erred in law in holding (our summary) that the Appellant, being the non-EU partner of a British citizen/EEA national exercising his EU Treaty right of freedom of movement in returning to his member State of origin, enjoyed the benefit of the ‘Surinder Singh’ principle.
The central argument advanced on behalf of the Secretary of State is that the ‘Surinder Singh’ principle (see Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department (Case C -370/90) [1992] does not apply to unmarried partners or extended family members of EU citizens but is confined to spouses. It was further contended that the FtT had erred in law in relying on the decision in Cain. The cornerstone of the submissions of Mr Metzer QC and Ms Saifolahi on behalf of the Appellant is that she benefits from the embrace of the Surinder Singh principle.
The Surinder Singh principle, at heart, allows a British citizen who has been exercising Treaty rights in an EEA state to be treated as an EEA national with the attendant rights for a spouse and children on return to the United Kingdom. The family members are not to be treated less favourably than required by Community law. The contours and rationale of the principle are ascertainable from the following passages:
“ 19. A national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State.
20. He would in particular be deterred from so doing if his spouse and children were not also permitted to enter and reside in the territory of his Member State of origin under conditions at least equivalent to those granted them by Community law in the territory of another Member State.
21. It follows that a national of a Member State who has gone to another Member State in order to work there as an employed person pursuant to Article 48 of the Treaty and returns to establish himself in order to pursue an activity as a self-employed person in the territory of the Member State of which he is a national has the right, under Article 52 of the Treaty, to be accompanied in the territory of the latter State by his spouse, a national of a non-member country, under the same conditions as are laid down by Regulation No 1612/68, Directive 68/360 or Directive 73/148, cited above.
22. Admittedly, as the United Kingdom submits, a national of a Member State enters and resides in the territory of that State by virtue of the rights attendant upon his nationality and not by virtue of those conferred on him by Community law. In particular, as is provided, moreover, by Article 3 of the Fourth Protocol to the European Convention on Human Rights, a State may not expel one of its own nationals or deny him entry to its territory.
23. However, this case is concerned not with a right under national law but with the rights of movement and establishment granted to a Community national by Articles 48 and 52 of the Treaty. These rights cannot be fully effective if such a person may be deterred from exercising them by obstacles raised in his or her country of origin to the entry and residence of his or her spouse. Accordingly, when a Community national who has availed himself or herself of those rights returns to his or her country of origin, his or her spouse must enjoy at least the same rights of entry and residence as would be granted to him or her under Community law if his or her spouse chose to enter and reside in another Member State. Nevertheless, Articles 48 and 52 of the Treaty do not prevent Member States from applying to foreign spouses of their own nationals rules on entry and residence more favourable than those provided for by Community law.
…
25. The answer to the question referred for a preliminary ruling must therefore be that Article 52 of the Treaty and Directive 73/148, properly...
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