On 12 July 2018 the Court of Justice of the European Union reached a decision in the case of Banger (C-89/17). The case is highly significant to a number of British citizens and their families living in the UK, because it deals with the legal position of the unmarried partners of British citizens returning to the UK after living in another EU member state.
Partners who are married or in a civil partnership with a British citizen who has exercised treaty rights in another EU state can apply for UK residence cards under the Immigration (European Economic Area) Regulations 2016. The Regulations take account of the ruling in an earlier EU case known as Surinder Singh to allow for this.
However, the Home Office has been stubborn in its insistence that only direct family members can benefit from the Surinder Singh principle. Unmarried partners in a “durable relationship” are included in the definition of “extended family members”. Although extended family members of non-British European nationals residing in the UK do not have the same automatic residence rights as direct family members, they can apply for residence documentation in expectation of a proper examination of their circumstances. The partners of British citizens who have lived and worked in other European countries are denied even this.
At a First Tier Tribunal hearing in August, where a client in almost exactly the same circumstances as Ms Banger had hoped finally to have her case resolved, the Home Office requested an adjournment on the basis that “all these cases are now being allocated to the original caseworker for reconsideration”.
I made a Freedom of Information request for any relevant policy guidance, but it has been refused on public policy grounds. The FOI49761 Response says:
“The Court of Justice of the European Union (CJEU) has recently promulgated its judgment in the case of Banger (C-89/17). This case concerns whether a Member State is obliged to facilitate applications from extended family members under the Surinder Singh route.
The CJEU found that there is such an obligation on Member States”
“We are currently considering how best to implement the effects of the Banger judgment. Further information will be published in due course.
There is a clear public interest in withholding the information concerned as Ministers need a safe space in which to discuss important policy matters, consider all options and weigh up the risks of particular proposals, without the prospect of their ideas being held up to critisism [sic] in the public domain. It is also considered that disclosure of the information may, in future, inhibit Ministers from setting out their views in writing, or challenging existing policy. This, in turn, may prevent important policy issues and proposals from being thoroughly explored, thus harming the policy-making process in the long run.
I have concluded that the balance of the public interests identified lies in favour of maintaining the exemption. There is a greater overall public interest in ensuring that Ministers have the necessary space to discuss and formulate Government policy relating to the judgment in Banger and ensure that applicants, and the general public are informed at the appropriate time.”
In my client’s case, she has been waiting for an outcome for some 3 years. To find on the day of her hearing that the Home Office is now formulating has a policy that might be exercised at some unspecified future date was really too much for her. She and her British partner are in the process of deciding whether to relocate once more, to Spain.
In more general terms, there is a distinct lack of urgency in the Home Office’s attitude to people affected by the Banger judgment. For unmarried partners who have no automatic right to residence, timely consideration of their cases is of the utmost importance. Most applicants will be in limbo in the UK, treated as illegal immigrants under the “Hostile Environment” policy.
It is hoped that ministers remember that an overly-relaxed attitude to the “time and space” they need to discuss this point could result in Brexit arriving next March without consideration of this issue having taken place at all.
If you would like advice on your UK residence rights, you can contact me using the detail on my contact page.