The Secretary of State for the Home Department v Rozanne Banger

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:

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 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:

The Surinder Singh principle has been considered in subsequent decisions of the ECJ and CJEU. In Minister Voor Integratie v Eind (Case C-291/05); [2007], a national of the Netherlands, Mr Eind, came to the United Kingdom to work. His daughter migrated from Surinam and joined him there. On return to the Netherlands Mr Eind applied for confirmation of his daughter’s right to reside with him. She was refused a residence permit. The ECJ found that Mr Eind’s daughter was entitled to return with him to the Netherlands. In thus deciding, the Court gave effect to the principle of free movement and the related principle of efficacious enjoyment of Community law rights.

In Cases C-456/12 and C-457/12, O, B, S and G the CJEU held that where a Member State had refused to grant a derived right of residence to a third-country national who was a family member of a citizen of that same Member State and a citizen of the EU, by virtue of Article 20, residence rights may be derived directly from Article 21(1) TFEU. The Court invoked the decisions in Surinder Singh and Eind and the Treaty right of free movement of workers, considered that the same reasoning applies in cases where the general free movement right enshrined in Article 21(1) TFEU is at stake. The Court held that the derived right of residence conferred on family members by Article 21(1) TFEU extends to family members of a third country and that the conditions governing such residence (which, in the United Kingdom, are prescribed in the EEA Regulations) should not be stricter than those provided for by the Citizens Directive.

This Tribunal had occasion recently to review the Surinder Singh stream of jurisprudence in Osoro (Surinder Singh) [2015] UKUT 00593 (IAC), summarising the last mentioned decision of the CJEU in the following terms:

Post-Surinder Singh the developing jurisprudence of the CJEU has continued to display a succinctly purposive and progressive flavour. This is exemplified in Metock v Minister for Justice, Equality and Law Reform [Case C-127/08] where the Grand Chamber decided that the Citizens Directive precludes legislation of a Member State which requires a national of a non-member country who is the spouse of a Union citizen residing in that Member State, though not having its nationality, to have previously been lawfully resident in another Member State before entering the host Member State in order to benefit from the provisions of the Directive: see [80]. In its judgment the court emphasised that the Community legislature has progressively recognised the importance of ensuring the protection of the family life of nationals of Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the EC Treaty: see [56]. Next, the court highlighted one of the express aims of the Citizens Directive, namely to strengthen the right of free movement and residence of all Union citizens. The principle of efficacious enjoyment of Community law rights emerges in the following passages:

The right of freedom of movement of workers was formerly regulated by EC Directive no: 73/148, which was later absorbed into an enlarged measure, namely Directive 2004/38/EC (the “Citizens Directive”). By these measures EU nationals and, progressively, members of their families acquired the right to move freely within EU Member States. No rights of entry or residence were conferred on third country family members.

Post- Surinder Singh the EU legal landscape underwent a significant development through the introduction of citizenship of the European Union. This was initially established by the Maastricht Treaty in 1992, in tandem with the creation of the EU itself. By this measure every national of each Member State became an EU citizen, thereby acquiring certain rights not through their nationality of their own Member State, but qua EU citizens by virtue of the Treaties and secondary legislation provisions. Citizenship of the Union is now governed by Article 20 TFEU, which provides as follows:

We have adverted above to the Citizens Directive. This measure of secondary EU Law contains the detailed outworkings of the primary provisions noted above. Its rationale is clearly expressed in the first and second recitals. Citizenship of the Union confers on each of its citizens a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and the measures adopted to give it effect. Further, the free movement of persons constitutes one of the fundamental freedoms of the internal market. These two principles form the prelude to the grand declaration that Union citizenship should be the fundamental status of nationals of the Member States “ when they exercise their right of free movement and residence ”: per recital (3). The lengthy recitals which follow are an indication of the moderately complex nature of the regime established by the Directive.

‘Union citizen’ means any person having the nationality of a Member State;

‘family member’ means:

the spouse;

the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

‘Host Member State’ means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.”

In the United Kingdom legal system the EEA Regulations are the transposing measure in respect of the Citizens Directive. In this appeal there is particular focus on Regulation 9, which is concerned with “family members” of EEA nationals and provides as follows:

Logically, the next port of call is Regulation 8, which is concerned with “ extended family members ”, as defined. It provides, in material part:

To summarise, Regulation 9 makes provision for a British national to be treated as an EEA national for the purposes of the EEA Regulations in the circumstances specified. Regulation 8, however, makes no provision for a British national to be treated as an EEA national for the purposes of considering the circumstances and entitlement of a person who is neither the spouse nor the civil partner of the EEA national/British citizen, but is the partner of the latter, and between whom there is a durable relationship.

There is evident disharmony between Article 3 of the Directive and Regulation 8 of the EEA Regulations. Whereas the former imports no stipulation relating to the nationality of the Union citizen concerned, the latter does: British citizens are, in this context, excluded from the definition of “EEA national”. Furthermore, Article 3 does not require the Union citizen’s partner to be either the spouse or the civil partner of the former, whereas Regulation 8 does. Thus we recognise the argument that Regulation 8 purports to legislate in a manner neither contemplated nor permitted by the Citizens Directive. This argument, potentially, involves the discrete contention that when Articles 2 and 3 of the Citizens Directive are read as a whole and considered in their full context, the words “irrespective of their nationality” in Article 3(2)(a) apply also to Article 3(2)(b). If correct, this argument would yield the conclusion that there is disparity of treatment between British citizens and EEA nationals.

Some reflection on non-discrimination on the ground of nationality is appropriate. This is one of the pillars of the Surinder Singh principle. It is also a principle of EU law of some vintage and pedigree. Its origins are traceable to Regulation 1612/68 which entitled migrant workers and, though in qualified terms, members of their family to equal treatment in respect of employment conditions, access to vocational training and a series of social and tax benefits. While the equivalent secondary legislation regarding the right of establishment and the provision of services did not have the same effect, the ECJ declared that a comparable protection reposed in certain Treaty provisions (Konstantinidis [1993] ECR 1-1191, at [46]. Non-discrimination on the ground of nationality has evolved. It is now expressly prohibited by Article 18 TEU, which provides:

It is, of course, necessary to acknowledge that the Directive differentiates between “family members” as defined and other persons who could be considered members of the family unit in a wider sense. This is made particularly clear by recitals (5) and (6). The former highlights the importance of the definition of “family member”. What follows immediately thereafter, in recital (6), gives rise to a clear dichotomy:

It cannot be denied that the Directive accords different treatment to “family members”, as defined and other members of the family unit “in a broader sense”. One further aspect of this discrete topic is that Article 2 of the Citizens Directive confers rights on family members, whereas Article 3(2) provides for the facilitation of entry and residence for family members outwith the definition of “family members”. This potentially, raises interesting questions concerning the Treaty prohibition against discrimination on the ground of nationality and the decision in Metock wherein, as we have highlighted in [11] above, the CJEU used the language of rights conferred on third country nationals in its elaboration of the effects of the Citizens Directive.

If there is merit in the argument which we have sketched above, it would follow that Regulation 8 of the EEA Regulations reflects a failure by the United Kingdom to take all appropriate measures to ensure fulfilment of its obligations arising out of the Treaty, in contravention of Article 5 TEU. Thus the failure of the Regulations to recognise the rights of Union citizens’ durable relationship partners who do not have the status of spouse or civil partner would equate to a failure to properly transpose the Citizens Directive. We bear in mind that we have not received full argument on the issue.

We consider that this challenge falls to be determined within the confines of the Surinder Singh principle. It seems to us that this principle continues to operate in a residual, probably small, category of cases in which the Citizen’s Directive is not dispositive. In pure legal doctrinal terms it might be said that the Surinder Singh principle co-exists with, and seeks to give effect to, those measures of primary EU legislation which we have highlighted above which are not fully implemented in the relevant EU secondary legislation, namely the Citizens Directive, or are undermined or diluted by either the EU secondary legislation or the transposing domestic legislation in the decision in any given case. On this analysis the Citizens Directive is not exhaustive of rights and obligations in the field to which it applies.

We consider that the decision of the CJEU in Case C-83/11, Secretary of State for the Home Department v Rahman and Others has a bearing on the issues raised in this appeal. There it was held unambiguously that Member States must ensure that their legislation contains criteria which enables family members falling outwith the definition of family member in Article 2(2) of the Citizens Directive -

The matrix of this appeal is as follows. During their sojourn in The Netherlands, Mr Rado, the Appellant’s Union citizen/British national partner, exercised his free movement rights and the Appellant, as his partner, secured residence authorisation. The legal foundation of this authorisation can be traced to Article 3(2)(b) of the Citizens Directive. Upon the couple’s return to the United Kingdom the Appellant has been denied a residence card by the Secretary of State. This refusal accords with the regime of the EEA Regulations. It is based upon the consideration that the Appellant’s partner is a British national.

If the Appellant’s partner were the national of another Union state, the refusal could not be lawfully made under the EEA Regulations. Thus there is disparity of treatment because, firstly, the Appellant’s partner, being a British national, is treated differently from the nationals of other EU Member States. His British nationality is the impetus for the disparate treatment. It is the sine qua non. We further observe that the impugned decision of the Secretary of State does not proffer any justification for treating Mr Rado in a manner differing from the treatment which would have been accorded to the Appellant’s partner if he were a national of another EU Member State. Secondly, there is prima facie differential treatment as regards the Appellant and other analogous partners of non-British nationals.

The treatment of Mr Rado, therefore, differs from that which would be accorded to the nationals of other EU Member States. This, raises the question of whether the Secretary of State’s refusal to grant the Appellant a residence card, infringes both the EU general principle of non-discrimination and Article 18 TEU.

At this juncture we return to the Surinder Singh principle. As was observed in Osoro, while this principle co-exists with the Citizens Directive, the precise terms of the relationship between the two are not entirely clear. Cases such as the present proceed on the basis that, in the abstract, the Surinder Singh principle is capable of applying to the relationship under scrutiny. The question thereby raised is whether it does apply in the particular context. As subsequent decisions demonstrate, the principle does not operate in a straightjacket. Rather, it has sufficient flexibility to be extended to contexts analogous to that in which it was devised. As observed above, the jurisprudence of the CJEU in this field has a distinctly purposive, progressive flavour.

This case, in common with Surinder Singh, involves a third country partner of the EU citizen/British citizen concerned. The only difference is that Mr and Mrs Singh were married, whereas the relationship between this Appellant and Mr Rado is of the unmarried variety. There is no dispute that the Appellant and Mr Rado are united by a durable relationship. In Eind, the third country national in the matrix was the daughter, rather than the adult partner, married or unmarried, of the EU citizen concerned. Thus to apply the Surinder Singh principle to the relationship in the present case would involve a relatively short step. What is unclear, however, is the legal trigger for the extension of the Surinder Singh principle in a case such as the present.

Two of the three pillars of the Surinder Singh principle, namely freedom of movement of an EU worker (Mr Rado) and the efficacious enjoyment of this right are undoubtedly engaged. The third pillar is the crucial one in the present context. It requires determination of the question of whether the facility accorded to this Appellant during the couple’s sojourn in The Netherlands, namely a residence authorisation, was a requirement of Community law. The CJEU has held unequivocally that neither Article 21(1) TFEU nor the Citizens Directive confers autonomous rights on third country nationals: see O, B, S and G (supra). Any right acquired by a third country national is derived from the freedom of movement exercised by the EU national.

We have canvassed above the possibility that the necessary requirement of EU law is contained in Article 3(2)(b) of the Citizens Directive. Persons embraced by Article 3(2) cannot, however, lay claim to a right of residence in the host Member State. Nor does Article 3 confer any rights on the EU citizen member of the relationship under scrutiny. Rather, it seems to us that Article 3, reflecting a presumptively deliberate choice on the part of the Community legislature involving a dichotomy of EU citizen family members (on the one hand) and third country family members (on the other), is a provision of restrained effect and scope.

Two particular features underline the limitations of the Article 3 prescription. First, it is specifically contemplated that its detailed outworkings will be prescribed by “national legislation”, in which context the principle of subsidiarity applies. Second, it provides that the host Member State –

Given our analysis above, it seems unlikely that Mr Rado, on whom the spotlight must fall primarily, being the EU citizen concerned, can acquire from the Citizens Directive a requirement that his third country national partner, the Appellant, be granted a right to reside with him in the United Kingdom or that the Appellant can derive any such right from Mr Rado. In light of [34] below we decline to decide this discrete issue conclusively.

We draw attention to one further dimension of Article 3(2) of the Citizens Directive. This imposes on all Member States the duty to facilitate entry and residence for third country nationals such as the Appellant, to undertake an extensive examination of the personal circumstances of the family members concerned and, in the event of deciding to deny entry or residence to a family member, to justify such refusal. Whether these inter-related duties are discharged via a formulaic letter which, mechanistically, refuses the facility sought by reference to an inflexible provision of the EEA Regulations may be open to question.

Finally, we refer to Article 7 of the Charter of Fundamental Rights of the European Union which confers on everyone the “right to respect for his or her private and family life, home and communications”. Having regard to the basis upon which the impugned decision of the Secretary of State was made, no consideration was given to the question of whether an infringement of the rights of the Appellant and her partner under this provision was thereby occasioned. As a result, there is no evidence relating to issues such as legitimate aim or proportionality. This may be linked to what we have said in [23] – [24] and [31] above.

Having tentatively formulated certain questions of pure EU law we have considered the parties’ further representations and have reviewed the contents of this inconclusive judgment. Our preliminary view that the acte claire principle does not apply is confirmed. We have also considered the supervening decision of this Chamber in Sala (EFM’s – right of appeal) [2016] UKUT 411 (IAC), which held that there is no right of appeal to the FtT against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member.

Accordingly, we have determined to make a reference to the CJEU under Article 267 TFEU in the terms of the Order annexed. These proceedings will be stayed in the meantime.