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Unmarried partners of EEA nationals – unequal rights

The UK immigration rules provide quite liberal treatment for unmarried partners. If they can prove that they have been living (anywhere) with their British/settled partner in a relationship for at least two years then they are deemed to be an unmarried partner within the legal meaning and they have similar rights to spouses and civil partners – in the immigration context at any rate, if not in all other areas.

But in European immigration law things are more complex. The law divides people who are members of the family of an EEA national into two categories: “family members” (spouses/civil partners, children under the age of 21) and “extended family members” – grandparents, aunts and uncles, siblings etc and also unmarried partners.

There is no strict two-year rule for such unmarried partners: the migrant concerned only has to demonstrate that there is a “durable relationship” – but of course a lengthy cohabitation is useful evidence in such a case.

So, whereas UK immigration law puts unmarried partners into the same sort of bracket as spouses/civil partners, European law does not, and the legal regime for extended family members is generally more difficult and more restrictive (and sometimes more uncertain) than it is for family members.

A family member of an EEA national has powerful rights to join or stay with the EEA national in the UK if the EEA national is exercising Treaty rights, eg by working. Extended family members also have some rights but they face a rather more uphill struggle, and the relevant regulations are written with a rather different flavour.

The following is a very good example: an Entry Clearance Officer “must” issue an EEA Family Permit to the family member of a qualifying EEA national. But, on the other hand, an Entry Clearance Officer “may” issue an EEA Family Permit to an extended family member of a qualifying EEA national if “in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit” – which of course sounds horribly vague, and it gets worse:

“Where an entry clearance officer receives an application … an extensive examination of the personal circumstances of the applicant must be undertaken by the Secretary of State and if the application is refused, the entry clearance officer must give reasons justifying the refusal unless this is contrary to the interests of national security.”

Immigration humourists such as us can well imagine an Entry Clearance Officer suddenly ringing up the Home Secretary in the middle of the night and asking him to pop over to Casablanca in the morning to do a quick examination of an EEA Family Permit applicant. But, more seriously, the obscure syntax of these regulations has caused some problems and issues.

Some while ago in 2016 the Upper Immigration Tribunal reached the seemingly harsh conclusion that extended family members of EEA nationals had no right of appeal to the First-Tier Immigration Tribunal if their application for an EEA Residence Card was refused. Not only harsh but wrong, according to the Court of Appeal (in a case called “Khan”) who, fortunately for such individuals, overturned the decision. So now they do have the right of appeal after all.

And recently another case reached the Upper Tribunal which engaged some similar issues. It concerned a South African national, Ms Banger (incidentally pronounced “banja”, not “banga”) who had an unmarried partnership with a British national, Mr Rado. Mr Rado had been offered a job in the Netherlands and they both went to live there so that he could take it up.

When the job finished Mr Rado returned to the UK and brought his partner with him. Densely technical readers will have heard of an EEA immigration route called “Surinder Singh”, which makes – or might make – this situation lawful because, under its governing principles, a British person who has lived and worked in another EEA state is treated as though they are a regular EEA national when they return to the UK.

But the Home Office refused Ms Banger’s application for an EEA Residence Card. In all fairness to the Home Office this decision seemed inevitable, because the relevant regulations said that only family members could benefit under the Surinder Singh route.

The case eventually reached the Upper Tribunal who this time – and perhaps still smarting from having its fingers burned by the Court of Appeal – referred the case to the Court of Justice of the European Union (CJEU) for a binding opinion. (This is something that national courts and tribunals in the EEA are able to and entitled to do.)

The CJEU came to Ms Banger’s rescue and decided that the words in the regulations were too restrictive to be lawful under more general principles of EU law, and so she won the case and will now presumably get the visa.

This is a step in a helpful direction for unmarried partners of EEA nationals, but they still face various legal difficulties. If you are such a person you would be well advised to get good legal advice about your situation.

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