UPPER TRIBUNAL RULING ON IMMIGRATION OF UNMARRIED PARTNERS AND APPLICATION OF SURINDER SINGH

This case concerned a non-EEA unmarried partner of British citizen returning to the UK following residency in another EEA member state. In this instance the non-EEA unmarried partner was a South African citizen Ms Banger who has been in durable relationship with British citizen, Mr Rado, for some years. First of all they resided in South Africa and in 2010 moved to Netherlands as Mr Rado received a work assignment there. Ms Banger was granted a Dutch residence card as an extended family member of an EU national. Following 3 years of residence in Netherlands the couple decided to move to the UK and Ms Banger applied for a residence card under the Immigration (European Economic Area) Regulations 2006 (“EEA Regulations”) to the Home Office in the UK. The residence card application was refused on the basis that regulation 9 of the then EEA Regulations did not recognise unmarried partners as family members of British Citizens as only spouses and civil partners are recognised as such. Currently in force the Immigration (European Economic Area) Regulations 2016 reflect the same position regarding family members of British citizens.

The Upper Tribunal considered various issues related mainly to the application of principles of Surinder Singh case, subsequent case law and interplay between the Citizens Directive and EEA Regulations. Following consideration of the issues in this appeal the Upper Tribunal stayed proceedings and referred a number of questions to the Court of Justice of the European Union (“CJEU”) for preliminary ruling. The issues referred to the CJEU are as follows:

1. Whether the principles contained in the decision in Surinder Singh extend to non-EEA unmarried partners;
2. In alternative whether there is a requirement to issue or facilitate the provision of such residence authorisation by virtue of Citizens Directive;
3. Whether a decision to refuse a residence authorisation, which was not made following extensive examination of the personal circumstances of the applicant and is therefore not justified by adequate or sufficient reasons, is unlawful as being in breach of Article 3(2) of the Citizens Directive;
4. Whether a rule of national law which precludes an appeal to a court or tribunal against a decision refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive.

It will take some time for CJEU to rule on the above issues. In the meantime the current position of unmarried partners of British citizens will remain the same, i.e. that they will be refused residency documentation if they choose to rely on EEA Regulations rather than domestic UK Immigration Rules, which contain much stricter requirements. However, watch this space, this may change.