Appeal rights in a hostile environment are a profoundly important question. In the case of Banger (Unmarried Partner of British National: South Africa)  UKUT 125 (IAC) a series of questions were referred to the CJEU. Among the four questions referred was the issue whether it is compatible with the Citizens’ Directive (2004/38/EC) to operate 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” (EFM), an expression which covers which both subcategories contained in article 3(2) of the Directive, i.e. “other family members” in article 3(2)(a) and “the partner with whom the Union citizen has a durable relationship, duly attested” under article 3(2)(b). Significantly, at first blush, AG Bobek appeared to reject the dubious approach formulated in Sala (EFMs: Right of Appeal)  UKUT 0411 (IAC). Nonetheless, he remained reluctant to dismiss in its entirety the idea that judicial review is an inadequate remedy for EFMs. Moreover, he was somewhat ambivalent about the CJEU’s role in the dispute in the main proceedings. But this case is about much more than just appeal rights and throws up issues regarding the rights of EU citizens returning home after their exercising free movement rights.
Rozanne Banger, a South African, and Philip Rado, a British national, lived together from 2008 to 2010 in South Africa. The latter accepted a job in the Netherlands and the couple moved there. Banger was granted a residence card pursuant to the domestic provisions transposing article 3(2) of the Directive. The couple then moved to the UK in 2013 where Banger was refused a residence card since they were not a married couple. AG Bobek opined that where an EU citizen returns to his home state, that member state must facilitate the entry and residence of the citizen’s non-EU partner with whom he has created or strengthened family ties in another member state. The requirement to facilitate does not confer an automatic right of residence but does require the member state to undertake an extensive examination of the personal circumstances of the third country national and justify any refusal of entry or residence. AG Bobek proposed that the CJEU should rule that Banger is entitled – in line with a combined interpretation of free movement rules in the Treaties and the Directive – to have an extensive examination of her application to reside in the UK. Justifications must be provided for any denial of entry or residence on the basis of that examination and coverage must be provided to her specific personal circumstances, including her relationship with the EU citizen.
The refusal relied on regulation 9 of the Immigration (European Economic Area) Regulations 2006 whereby rights are conferred on the family members of UK nationals returning to their home state after having exercised free movement rights. The decision-maker applied regulation 9 and found that in order to qualify as a family member of a British citizen, the applicant must either be the spouse or civil partner of a British citizen which Banger was not. The FTT held on appeal that her situation was covered by the principle in Surinder Singh (C-370/90, EU:C:1992:296). But the Home Office appealed to the UT on the ground that Singh involved a married couple whereas the present couple were unmarried.
McCloskey J and DUTJ Remington considered extending the scope of Singh as a “relatively short step”. Doubt nevertheless existed in their minds about the legal basis for such an extension. There was also a lack of clarity on other issues. The specificity of article 3(2) and the fact that it does not confer an automatic right of residence and the margin of discretion enjoyed by the member states permitting legislation to differ between them weighed significantly on the tribunal’s mind.
Advocate General Michal Bobek
The first three questions fell to be addressed together because they essentially concerned the legal basis and content of the member states’ obligations in relation to the entry and residence of unmarried partners of “returning” EU citizens in a durable relationship. They also implicitly queried the content of those entitlements, i.e. whether there is an obligation to issue such an authorisation or merely to facilitate it. The third question placed that issue centre stage by specifically asking whether article 3(2) permits the adoption of a refusal decision that is not based on an extensive examination of the applicant’s personal circumstances and is not justified by adequate or sufficient reasons. The fourth question related to the scope of judicial review required with regard to EFMs.
(i) Returning Citizens
Notably, the CJEU has repeatedly confirmed that free movement law may, by virtue of the Treaties, also apply by analogy in situations concerning EU citizens returning home after having exercised free movement rights. The logic underpinning pieces of jurisprudence such as Singh and Eind (C‑291/05, EU:C:2007:771) is simple. An EU citizen might otherwise be deterred from leaving home in order to undertake economic activity in another member state if, on his return, the conditions of his entry and residence were not at least equivalent to those which he would enjoy in the territory of another member state.
Singh spoke of a “spouse”. Eind went a step further and expanded coverage by including “living together with close relatives” and family life arising in the host member state “as a result of marriage or family reunification”. The CJEU interprets article 21(1) TFEU to mean that the conditions of secondary law regarding the rights of entry and residence of family members, particularly those laid down in the Directive, apply by analogy to family members of returning EU citizens against the EU citizen’s home state. Furthermore, in O and B (C‑456/12, EU:C:2014:135) it was clarified that the approach articulated in case-law applies where the EU citizen has created or strengthened his family life with a third-country national during a genuine residence in a member state other than the home member state.
The UK argued that the principles enshrined in these cases exclusively concern the rights of entry and residence under the Directive. The argument, which was rejected in its entirety, ran as follows. Under article 3(1), those rights are only enjoyed by the family members who fall under the list in article 2(2) but not by EFMs under article 3(2). Therefore, an application by analogy based on the dissuasive effect of the denial of residence rights for family members on the exercise of free movement rights by EU citizens would be unjustified in Banger’s case because it concerns an unmarried partner who is disentitled from such a residence right according to article 3(2).
Whilst it is correct to say that recent CJEU authorities involving non-EU family members of EU citizens have concerned the status of “family members” under article 2, this alone could not be inverted and interpreted as an intention to constrict the application of the established principles exclusively to “family members”. Taking a common sense view of things, AG Bobek opined:
35. … An equally plausible explanation (indeed, from my point of view, a much more plausible explanation) is that those cases referred solely to family members because, quite simply, they only concerned family members.
The point was amplified by the fact that the overall logic underlying the Directive’s application by analogy to family members also applies fully to EFMs. The logic underpinning the case-law works on the basis that an EU citizen might otherwise be deterred from leaving his home state in order to undertake economic activity in another member state if, on his return, the conditions of his entry and residence were not at least equivalent to those which he would enjoy in another member state’s territory.
The Commission’s view was correct that this was especially the case with regard to the unmarried partner of an EU citizen with lawful residence pursuant to EU law in the host member state. Dissuasion and deterrence function on the logic that barring those personally close to the EU citizen from joining him will discourage the EU citizen from moving altogether. AG Bobek acknowledged that over time changes in social perceptions have ushered in a range of forms of cohabitation. Consequently, in actual fact, the potential to deter might be greater in connection to a partner under article 3(2)(b) in comparison to some of the categories listed in article 2(2). Whilst this was not necessarily always true, AG Bobek postulated that:
37. … I am simply suggesting that with regard to who is effectively “close” to a person, formal box-based generalisations are hardly appropriate.
Indeed, in Schalk and Kopf v Austria  ECHR 1996, the ECtHR confirmed that same-sex unmarried couples living in stable de facto partnerships were covered by the concept of family life. The court also clarified that “family life” is an evolving concept and includes de facto ties. The idea of “family” under article 8 of the ECHR is not restricted to marriage-based relationships and may extend to other de facto family ties where the parties are enjoying family life out of wedlock and children are born out of wedlock.
“The unity of the family in a broader sense,” is the clear objective pursued by article 3(2) and recital 6 of the Directive confirms this. Strengthening or creating “broader” family ties in the host member state by the EU citizen’s genuine residence may indeed produce similar considerations based on dissuasion. Conversely, an element of improbability vitiated the dissuasion and deterrence logic relied on to justify applying the Directive by analogy to EU citizens returning to their home states. Deterrence implies knowledge. It is hard to be deterred from a taking a certain course of action by something whose existence is unknown at the time when the decision is taken or the future existence of which is uncertain.
If an EFM enjoys a status in the EU citizen’s home state before moving elsewhere in the EU, then the exercise of free movement rights involves risk taking if the EFM had already acquired an immigration status – whose loss would accompany the exercise of free movement rights – in the EU citizen’s home state. Although EU law guarantees rights of residence in the second or subsequent host member state, it is clear from AG Tesauro’s Opinion in Singh that the prospect of not enjoying those rights upon return to the home state will reasonably play a dissuasive role in the personal assessment of the factors to consider in deciding whether to exercise free movement rights at all in the first place.
Greater intellectual difficulty arises in envisaging a dissuasive effect on the decision to leave home in order to exercise free movement where the EU citizen is yet to establish any family life. For example, doubt hung over the proposition that a recent university graduate’s choice to move will be influenced by romance – by potentially meeting the love of his life – and subsequently acquired knowledge of the difficulty of returning permanently to the home state. It was questionable that such a belated discovery should act as a deterrent to the exercise of free movement rights and keep the EU citizen at home. Outside of situations where finding true love is the driving force behind a person’s exercise of free movement rights, the alternative showed a weak basis for applying the Directive by analogy – i.e. “an effective extension of the applicability beyond its clear wording” – to returning EU citizens.
Observing that AG Tesauro in Singh had foreseen that it is not necessary that one is likely to be ex ante discouraged from moving, but rather that one cannot be ex post effectively penalised for doing so, AG Bobek stated:
43. I would therefore suggest that the Court place greater emphasis on an alternative justification for an application by analogy of the conditions of Directive 2004/38 to “returning” Union citizens and members of their (extended) family.
Earlier authorities such as D’Hoop (C‑224/98, EU:C:2002:432), Pusa (C‑224/02, EU:C:2004:273), De Cuyper (C‑406/04, EU:C:2006:491) and Schwarz and Gootjes-Schwarz (C‑76/05, EU:C:2007:492) show that the CJEU has already acknowledged in the context of the prohibition of discrimination that the exercise of free movement shall not entail an ex post disadvantage for EU citizens. A disadvantage arises where, despite “returning” citizens being subject to the same regulatory regime as those who have always remained at home, national rules fail to acknowledge family ties created or strengthened elsewhere on EU territory. Free movement produces different situations than those experienced by “static citizens” and Garcia Avello (C‑148/02, EU:C:2003:539) cautions against treating the two situations in the same way.
AG Bobek did not think that objectively different situations should not be treated in the same way because otherwise, there is a clear danger that “free movement would result in the granting of a one-way ticket” and “lead to the perpetuation of expatriation.” Such a result is at odds with the right to move and reside freely within the EU and such a predicament was closely examined by AG Sharpston in O and Others (C‑456/12 and C‑457/12, EU:C:2013:837). Therefore, in a nutshell, with some refinement the CJEU’s existing pronouncements regarding the application by analogy of the rights of entry and residence of family members under article 2(2) to EU citizens returning home are equally applicable to EFMs under article 3(2). Accordingly, a non-EU national partner in a durable relationship with an EU citizen, who has utilised freedom of movement, must not upon the return to the home state receive treatment less favourable than that which the Directive stipulates for EFMs exercising free movement rights in other member states.
(ii) Facilitation of Entry and Residence of EFMs
It needed to be determined whether EU law obliges member states to issue or alternatively to facilitate providing a residence authorisation to the unmarried partner of a returning Union citizen. It was undisputed that applying Singh unmarried partners of returning EU citizens are entitled to access the facilitation regime in article 3(2). Banger did not directly challenge that consensus. She raised the nuanced point, within the meaning of article 3(2), that the decision-maker failed to extensively examine her personal circumstances and did not justify the refusal by adequate or sufficient reasons.
The judgment in Rahman (C-83/11, EU:C:2012:519, see here) clarified that the three elements of the facilitation regime entail (i) an absence of an automatic right of entry and residence, (ii) the obligation to enact a facilitation regime under national law for which member states enjoy a margin of discretion, and (iii) the fact that that discretion is not unlimited. The Directive clearly limits that discretion by warranting that EFMs must be better off than the general category of non-EU nationals. Limits are also imposed by the fact that member states must undertake an extensive examination of the personal circumstances of the applicant and justify any denial of entry or refusal.
Rahman was unambiguous that as a corollary of the facilitation duty, any national provisions adopted must not deprive article 3(2) of its effectiveness. Member states retain a degree of latitude over substantive criteria and procedural conditions when facilitating entry and residence but “the bottom line” is that EFMs are on an altogether superior footing to the general category of third-country nationals. Rahman must be construed to refer to the general category of third-country nationals who do not enjoy any such entry and residence rights under Council Directive 2003/86/EC on the right to family reunification.
The fact that another member state has issued a residence card may not necessarily lead to the right of residence in the EU citizen’s home state being granted or in any other member state. On the other hand, the fact that the couple lived together while the EU national was exercising his free movement rights in the Netherlands allowed them to enjoy and strengthen their family life. Thus, a combined interpretation of the Treaty provisions (article 21(1) or article 45 TFEU) entitled Banger to have her application examined extensively, and to be provided with reasons justifying any denial of entry or residence on the basis of the results of that examination.
Since the only reason for refusing the residence card related to the couple’s unmarried status, it was pretty clear to AG Bobek that the decision-maker reasoning was insufficient to fulfil the requirement to provide due justification based on an extensive examination of the personal circumstances of EFMs under article 3(2)(b) because the provision covers persons who are not married, but are in a durable relationship with the EU citizen nonetheless.
The examination in contemplation reasonably includes ascertaining the nature of the relationship with the returning EU citizen which logically also includes accepting that another member state had already issued a residence card evidencing that a durable relationship had already been acknowledged and duly attested. Yet as seen in Rahman the duty to facilitate can be distinguished from the duty to automatically issue because member states retain the right to specify their own specific criteria in this sphere. This logically means that there is no “mutual recognition obligation” of the residence authorisations issued by other member states. Moreover, no duty exists to provide at least the same or better treatment than in the preceding host member state(s).
In AG Bobek’s opinion the ex ante dissuasion/deterrence and the ex post penalisation logic should not be stretched to mean that any and all successive member states where an EU citizen chooses to move should provide at least the same or better treatment than the preceding member state(s). Such an approach would prove problematic because it “would indeed reach far beyond any application by analogy and the notion of facilitation.”
(iii) Effective Remedy and Appeal Rights
In the aftermath of Sala, judicial review remained the only available remedy for EFMs against the refusal of entry or residence because the Upper Tribunal unexpectedly and wrongly removed rights of appeal from such persons. The fundamental issue for the CJEU is whether judicial review procedures comply with EU law requirements or whether it is necessary for EFMs to have access to the system of statutory appeals. The rival arguments ran as follows.
Banger submitted that judicial review was not an effective remedy for the purposes of the Directive and article 47 of the CFR. It was an unsatisfactory method of reviewing a decision refusing to grant a residence card because it was unconcerned with the decision itself and examined the decision-making process. Costs and scope of assessment were live issues for Banger. She stressed that judicial review could be used only to challenge a decision’s legality on limited grounds. Overall, judicial review in her case could only succeed on the ground of unreasonableness and therefore the scope of the challenge is reduced and factual elements do not receive coverage. The UK stressed that judicial review fully complies with EU law because it does not require that a particular statutory right of appeal must be provided by the member states. No requirement is imposed for states to provide a full review on the merits of decisions empowering the court or tribunal to substitute the original decision-maker’s assessment with a judicial decision.
In Sala the UT interpreted, albeit wrongly, Rahman to mean that the Directive does not warrant a full merits-based appeal and judicial review suffices to ensure that the decision-maker has “remained within the limits of the discretion set by [the] Directive”. Irwin LJ held in Khan  EWCA Civ 1755 (see here) that Sala was wrongly decided but the UK insisted that Khan was irrelevant to the outcome of the present case because it concerned the Immigration (European Economic Area) Regulations 2006 which were supplanted by the Immigration (European Economic Area) Regulations 2016. Agreeing with the Commission the UK emphasised that EU law requires a full review of the decision, including consideration of the facts and proportionality. Moreover, relying on Kiarie and Byndloss  UKSC 42 (see here), the UK also submitted that judicial review fully complies with those standards because the public law litigation procedure dually permits an examination of the legal basis of the decision and also factual errors and proportionality.
Against that, AG Bobek’s offered a threefold rationale why the CJEU should not answer the appeal rights question as posed (a) the court does not have the task of examining the diverse systems of judicial protection in national law, (b) it is still less placed to act as an arbitrator between national actors on legal standards or conduct an examination of a complex and evolving field of law such as English judicial review, and (c) under the preliminary ruling procedure the court cannot provide for abstract advisory opinions on the (un)suitability of whole areas of law or systems of judicial protection in general and it cannot get involved in matters such as standing, to costs, time limits, the scope of review, remedies that can be awarded, or means of appeal.
However, steered by AG Sharpston’s approach in East Sussex County Council (C‑71/14, EU:C:2015:234), extending the hand of cooperation AG Bobek nonetheless provided clarification on the obligations and requirements under EU law with regard to an effective remedy in the context of applying of article 3(2) by analogy. In relation to the Directive’s specific provisions concerning the judicial protection of free movement rights, accepting the UK and the Commission’s stance, AG Bobek took the view that the personal scope of article 15 only covered EU citizens and family members pursuant to article 2(2) and does not extend to EFMs.
Equally, however, providing a broader scope to article 15 was strongly arguable because although EFMs were outside its ambit, family members expressly fell within it and refusing a residence card to an EFM was clearly classifiable as a “restriction” on the EU citizen’s free movement rights. In light of S and G (C‑457/12, ECLI:EU:C:2014:136), and Lounes (C‑165/16, EU:C:2017:862, see here), AG Bobek explained:
89. Perhaps it is not a front runner for a “humanist case-law award”, but it has long been recognised by this Court that the derived right of residence of family members of Union citizens is instrumental in ensuring the free movement rights of the Union citizens themselves.
The facilitation regime enacted by article 3(2) “responds to the same dynamic of buttressing the free movement rights of Union citizens” and the logic of indirect limitation/impediment warrants that stopping the EFM from joining the EU citizen and accompanying infringements of free movement are “the smallest leap of faith.” None of this liberated article 15 from its limited nexus with the instant case. But persons making applications under article 3(2) were in any event entitled to the procedural guarantees deriving from article 47 of the CFR, which reflect the general principle of EU law of effective judicial protection.
AG Bobek recalled that in his own opinion in El Hassani (C‑403/16, EU:C:2017:659) he thought that there is no right to be granted a visa but an applicant still has the right to have his application fairly and properly processed and if necessary to judicial protection. Despite the assumption about article 15’s inapplicability vis-à-vis article 3(2), effective judicial redress stems from the collective operation of article 3(2) and article 47 of the CFR. No disagreement arose on the issue of access to the courts for EFMs. Instead, the point in contention related to the correct scope and intensity of the judicial scrutiny. In the circumstances, given the disengagement of article 15, no specific rules determining the scope of judicial scrutiny applied and framework fell to be determined by each member state’s court system.
The procedural autonomy open to member states’ courts was limited to the principles of equivalence and effectiveness. Since in the present context the UK was implementing EU law in the sense of article 51(1) of the CFR, a pressing need arose to respect the standard of protection provided by article 47. Banger’s case fell outside the scope of the principle of equivalence. Subsequent to the Treaty of Lisbon, effectiveness of judicial protection took a twofold meaning, namely (a) effectiveness as one of the dual requirements under the heading of procedural autonomy of the member states, and (b) effectiveness qua a fundamental right to an effective judicial remedy under article 47. The standard under the CFR is higher than the principle of effectiveness.
In Otis and Others (C‑199/11, EU:C:2012:684) and Imtech Marine Belgium (C‑300/14, EU:C:2015:825), as regards the right of access to a court the CJEU held that for a “tribunal” to be able to determine a dispute concerning rights and obligations arising under EU law in accordance with article 47, it must have power to consider all the questions of fact and law that are relevant to the case before it. The CJEU has also held that the requirement of impartiality in article 47 warrants that an official decision that does not automatically satisfy the conditions of independence and impartiality must be exposed to judicial control that must have jurisdiction to consider all the relevant issues. Drawing attention to Kadi (C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518), M (C‑560/14, EU:C:2017:101) and Sacko (C‑348/16, EU:C:2017:591), AG Bobek explained:
104. Compliance with the right to effective judicial protection must, therefore, be examined in relation to the specific context and the relevant circumstances of a case, “including the nature of the act at issue, the context in which it was adopted and the legal rules governing the matter in question”. As a result, having in mind the specific EU law rules and the specific nature of the rights and interests at issue, the Court has insisted on the need for a thorough review of decisions covering both the facts and the law, in particular where the instruments at issue already contained certain harmonised procedural standards.
He also found “general inspiration” in ECtHR jurisprudence interpreting articles 6 and 13 of the ECHR. As for the former provision, the sufficiency of the judicial review interlocks with the subject matter, manner of decision-making and the dispute’s content. A string of Strasbourg authorities – including Soering v UK (1989) 11 EHRR 439 – established the sufficiency of English judicial review as a remedy. But authorities, including Smith and Grady v UK (2000) 29 EHRR 493, also pointed the other way where article 6 was breached because the reviewing court was precluded from ruling on the central issue in dispute or where the domestic courts were bound by the prior decisive findings made by official decision-makers without examining the issues independently.
As for effective judicial protection and article 3(2), the member states enjoy wide but not unfettered discretion. In light of the points propounded by the CJEU in Fahimian (C‑544/15, EU:C:2017:255) and in light of AG Szpunar’s Opinion in that case:
109. However, discretion is not code for “black box”. According to the case-law of this Court, even where the competent authorities have discretion, judicial review must address whether the decision is based on a sufficiently solid factual basis and whether it complies with the procedural guarantees. In order to determine whether the limits of the discretion set by the directive have been respected, national courts must be able to review all the procedural aspects as well as the material elements of the decision, including its factual basis.
Despite the wide margin of discretion afforded to member states and the guidance in Rahman regarding the availability of judicial review as a means of redress, national courts must be able to check the compatibility of a national decision with the duties established by article 3(2). Beyond the requirement of facilitation, the threefold elements available for judicial scrutiny are (a) any review must be robustly based on extensive examination, (b) any potential denial of entry or residence must be logically reflected by accompanying reasons, and (c) any personal circumstances must be examined together with the relationship with the EU citizen and any situation of dependence. All these components must be reviewable by a court or tribunal and it must be possible for the key facts underpinning administrative decision-making to be judicially verified.
The reasons for any decision-making must be correctly evaluated against the criteria established by national law within the boundaries delineated by the Directive. The sufficiency and adequacy of the justification must be ascertainable and key in the formula is the possibility to assess whether the specific personal circumstances relevant to the relevant criteria have been duly examined.
Yet if these standards are met and the decision can be quashed then – in AG Bobek’s view – article 47 of the CFR imposes no requirement for reviewing court or tribunal to have the competence to examine new evidence. Moreover, no need arises for the reviewing court to either establish facts not put to the decision-maker or to possess the power to immediately replace the administrative decision with its own judgment.
Conveniently passing the buck and shirking responsibility for making a badly needed concrete finding to alleviate the suffering of EU citizens and their EFMs, AG Bobek ended his opinion by deferring things back to the national court which had the task of determining whether the system of judicial review offers sufficient redress in the circumstances. On the other hand, despite his hesitation to unequivocally state that judicial review is not a sufficient form of redress against the refusal of a residence card to an EFM, it seems to be the case that AG Bobek does incline to the view that a robust review of the facts and law is necessary for an effective remedy.
His approach is quite different from the path preferred by Irwin LJ, an extremely respected and astute English judge, who in Khan focused on the concept of an “EEA decision” within the meaning of regulation 2 of the 2006 Regulations and went on to hold without any hesitation that Sala was wrongly decided and that the Regulations “are formidably obscure and badly drafted” and that the drafting of section 109 of the Nationality, Immigration and Asylum Act 2002 “is too unspecific”. In any event, an obvious point of intersection between Irwin LJ’s judgment and AG Bobek’s Opinion is that, unlike CMG Ockelton VP and UTJ Grubb in Sala, both of them refused to read Rahman in a straitjacket.
These are closely watched developments. The Supreme Court held that in SM (Algeria) UKSC 9 (see here), but AG Bobek failed to take notice of it, that the decision in Sala is to be deprecated and that Irwin LJ’s rationale in Khan is to be followed on the interpretation of regulation 26 of the 2006 Regulations. Overall, the Supreme Court had no doubt that the outcome in Khan is correct “and that Sala should be overruled.”
The Justices said that they are anxiously awaiting the outcome in Banger because despite the ratio of Khan, the question about the appeal rights of EFMs is not moot because the Immigration (European Economic Area) Regulations 2016, which have supplanted the 2006 Regulations, exclude from the definition of an “EEA decision” decisions to refuse to issue an EEA family permit, a registration certificate or a residence card to an EFM. Therefore, in the meantime, rights of appeal for EFMs will continue to hang in the balance until the CJEU gives its final ruling in this case. If the decision is mysterious and obscure like most CJEU rulings inevitably tend to be, then it will be up to the UK courts to settle the issue of the appeal rights of EFMs once and for all.