In a globalized society, such as we live in today, it is not uncommon to work and live in other countries, often also outside the EU. Once there, one does not only establish professional contacts, but generally also private relationships. If a EU-citizen subsequently decides to move back to his country of origin with his partner, complications often arise. This is particularly the case if no marriage with the third-country-national (TCN) was concluded.
In July 2018, the European Court of Justice ruled that EU states are under an obligation to facilitate the entry and residence of TCN long-term life partners into the EU citizen’s country of origin. Nonetheless, the judgment also made it clear that EU states are not required to principally grant them a right of residence if they are not married to the EU citizen, nor registered as a civil partner.
Returning to the country of origin after several years abroad
The situation in the case at hand was the following: While residing in South-Africa, Mr. Rado, a British citizen entered a relationship with Mrs. Banger, a South-African citizen. The couple lived there for two years. Later, the two moved to the Netherlands, where Mrs. Banger received a residence card based on her relationship with the EU-citizen. After residing there for three years, the couple decided to move to the UK. However, the British authorities refused to grant Mrs. Banger a residence card since she was neither married to Mr. Rado, nor was she registered as his civil partner.
The issue was then brought before the European Court of Justice. The question was whether a EU state is required to grant such a life partner a right of residence, if an EU-citizen returns to his country of origin after having exercised his free movement rights to work in another EU state.
Obligation to facilitate entry and residence
The Court of Justice ruled that EU states are not required to grant such a TCN life partner a right of residence. However, the judgment made it clear the respective EU state is required to facilitate entry and residence of such long-term partners in accordance with its national rules. Furthermore, it was emphasized that a decision on an individual application must be based on the personal circumstances of the applicant concerned. If an application is rejected, the authorities must sufficiently lay out the reasons for their decision.
Conclusion: no automatic right of residence
The judgement indicates sympathy for a modern understanding of the notion family: many do not consider it necessary anymore to register their partner. However, the ruling lacks a far reach as it leaves a wide discretion to the Member States in dealing with the individual applications on the basis of their national rules. Notwithstanding, the Court emphasized that the requirement facilitating entry and residence may not be stretched to such a degree that it would lose its practical meaning. Thus, the individual decision will ultimately depend on the particular facts of applicants concerned.