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Language of document : ECLI:EU:C:2018:570

Case C‑89/17

Secretary of State for the Home Department

Rozanne Banger

(Request for a preliminary ruling from the Upper Tribunal (Immigration and Asylum Chamber))

(Reference for a preliminary ruling — Citizenship of the European Union — Article 21 TFEU — Right of Union citizens to move and reside freely within the territory of the European Union — Directive 2004/38/EC — Point (b) of the first subparagraph of Article 3(2) — Partner with whom the Union citizen has a duly-attested durable relationship — Return to the Member State of which the Union citizen is a national — Application for residence authorisation — Extensive examination of the applicant’s personal circumstances — Articles 15 and 31 — Effective judicial protection — Charter of Fundamental Rights of the European Union — Article 47)

Summary — Judgment of the Court (Fourth Chamber), 12 July 2018

1. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Union citizen returning to the Member State of which he is a national after residing in another Member State solely by virtue of his being a Union citizen — Derived right of residence conferred on third-country nationals who are family members of a Union citizen — Conditions — Application by analogy of the conditions, laid down by Directive 2004/38, for the grant of a derived right of residence

(Art. 21(1) TFEU; European Parliament and Council Directive 2004/38)

2. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Union citizen returning to the Member State of which he is a national after residing in another Member State solely by virtue of his being a Union citizen — Application for residence authorisation for the unregistered partner having a durable relationship that is duly attested with the Union citizen –Obligation for the Member State to facilitate the provision of such an authorisation

(Art. 21(1) TFEU; European Parliament and Council Directive 2004/38)

3. Citizenship of the Union — Provisions of the Treaty — Right to move and reside freely in the territory of the Member States — Union citizen returning to the Member State of which he is a national after residing in another Member State solely by virtue of his being a Union citizen — Application for residence authorisation for the unregistered partner having a durable relationship that is duly attested with the Union citizen — Rejection — Obligation to found the rejection decision on an extensive examination of the applicant’s personal circumstances

(Art. 21(1) TFEU; European Parliament and Council Directive 2004/38, Art. 3(2))

4. Citizenship of the Union — Right to move and reside freely in the territory of the Member States — Directive 2004/38 — Beneficiaries — Other members of a Union citizen’s family, who are third-country nationals, not falling under the definition in point 2 of Article 2 of the directive — Partner having a durable relationship that is duly attested with the Union citizen — Application for residence authorisation — Rejection — Right to bring an action — Judicial review — Scope

(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2004/38, Arts 3(2), 15(1), 30 and 31)

1. See the text of the decision.

(see paras 27-29)

2. Article 21(1) TFEU must be interpreted as requiring the Member State of which a Union citizen is a national to facilitate the provision of a residence authorisation to the unregistered partner, a third-country national with whom that Union citizen has a durable relationship that is duly attested, where the Union citizen, having exercised his right of freedom of movement to work in a second Member State, in accordance with the conditions laid down in Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, returns with his partner to the Member State of which he is a national in order to reside there.

In that regard, it must be stated that point (b) of the first subparagraph of Article 3(2) of Directive 2004/38 relates specifically to the partner with whom the Union citizen has a durable relationship that is duly attested. That provision provides that the host Member State must, in accordance with its national legislation, facilitate entry and residence for that partner.

According to the Court’s case-law, Article 3(2) of Directive 2004/38 does not require the Member States to accord a right of entry and residence to third-country nationals envisaged in that provision, but imposes an obligation on those Member States to confer a certain advantage on applications submitted by the third-country nationals envisaged in that article, compared with applications for entry and residence of other nationals of third countries (see, to that effect, judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 21).

(see paras 30, 31, 35, operative part 1)

3. Article 21(1) TFEU must be interpreted as meaning that a decision to refuse a residence authorisation to the third-country national and unregistered partner of a Union citizen, where that Union citizen, having exercised his right of freedom of movement to work in a second Member State, in accordance with the conditions laid down in Directive 2004/38, returns with his partner to the Member State of which he is a national in order to reside there, must be founded on an extensive examination of the applicant’s personal circumstances and be justified by reasons.

When undertaking that examination of the applicant’s personal circumstances, it is incumbent upon the competent authority to take account of the various factors that may be relevant in the particular case (see, to that effect, judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 23).

In the light both of the absence of more specific rules in Directive 2004/38 and of the use of the words ‘in accordance with its national legislation’ in Article 3(2) of that directive, each Member State has a wide discretion as regards the selection of the factors to be taken into account. Nonetheless, Member States must ensure that their legislation contains criteria which are consistent with the normal meaning of the term ‘facilitate’ and which do not deprive that provision of its effectiveness (see, to that effect, judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 24).

(see paras 39-41, operative part 2)

4. Article 3(2) of Directive 2004/38 must be interpreted as meaning that the third-country nationals envisaged in that provision must have available to them a redress procedure in order to challenge a decision to refuse a residence authorisation taken against them, following which the national court must be able to ascertain whether the refusal decision is based on a sufficiently solid factual basis and whether the procedural safeguards were complied with. Those safeguards include the obligation for the competent national authorities to undertake an extensive examination of the applicant’s personal circumstances and to justify any denial of entry or residence.

According to Article 15(1) of Directive 2004/38, the procedures provided for by Articles 30 and 31 of that directive are to apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health. Under Article 31(1) of that directive, the persons concerned are to have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

However, those provisions do not expressly mention the persons envisaged, in particular, in point (b) of the first subparagraph of Article 3(2) of Directive 2004/38.

In that regard, as the Advocate General observed in point 87 of his Opinion, the concept of ‘family members’ is used in other provisions of Directive 2004/38 also to include the persons envisaged in Article 3(2) of that directive.

In addition, according to the Court’s case-law cited in paragraph 38 of the present judgment, Member States must, in accordance with the second subparagraph of Article 3(2) of Directive 2004/38, make it possible for persons envisaged in the first subparagraph of Article 3(2) of that directive to obtain a decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons.

Since the provisions of Directive 2004/38 must be interpreted in a manner which complies with the requirements flowing from Article 47 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 4 June 2013, ZZ, C‑300/11, EU:C:2013:363, paragraph 50), those persons must have available to them an effective judicial remedy against a decision, under that provision, permitting a review of the legality of that decision as regards matters of both fact and law in the light of EU law (see, to that effect, judgment of 17 November 2011, Gaydarov, C‑430/10, EU:C:2011:749, paragraph 41).

Consequently, it must be found that the procedural safeguards provided for in Article 31(1) of Directive 2004/38 are applicable to the persons envisaged in point (b) of the first subparagraph of Article 3(2) of that directive.

As regards the content of those procedural safeguards, according to the Court’s case-law, a person envisaged in Article 3(2) of that directive is entitled to a review by a court of whether the national legislation and its application have remained within the limits of the discretion set by that directive (judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 25).

As regards its review of the discretion enjoyed by the competent national authorities, the national court must ascertain in particular whether the contested decision is based on a sufficiently solid factual basis. That review must also relate to compliance with procedural safeguards, which is of fundamental importance enabling the court to ascertain whether the factual and legal elements on which the exercise of the power of assessment depends were present (see, by analogy, judgment of 4 April 2017, Fahimian, C‑544/15, EU:C:2017:255, paragraphs 45 and 46). Those safeguards include, in accordance with Article 3(2) of Directive 2004/38, the obligation for those authorities to undertake an extensive examination of the applicant’s personal circumstances and to justify any denial of entry or residence.

(see paras 44-52, operative part 3)