Banger Case: Expanding the Surinder Singh Principle to Unmarried Partners

Introduction

The Banger (Unmarried Partner of British National: South Africa) case ([2017] UKUT 125 (IAC)) represents a pivotal moment in UK immigration law, particularly concerning the rights of unmarried partners of British nationals under EU free movement principles. The Upper Tribunal (Immigration and Asylum Chamber) referred key questions to the Court of Justice of the European Union (CJEU) to seek clarity on whether the Surinder Singh principle, which has traditionally applied to married couples, extends to unmarried partners. This commentary delves into the case's background, judicial reasoning, and its potential implications for future legal interpretations.

Summary of the Judgment

Rozanne Banger, a South African national and unmarried partner of Mr. Rado, a British citizen, sought a residence card to reside in the United Kingdom. Having previously held a residence card in The Netherlands as an extended family member of an EU citizen, Ms. Banger's application was refused by the UK Secretary of State based on her unmarried status. The First-tier Tribunal ruled in her favor, invoking the Surinder Singh principle. However, the Secretary of State appealed, leading the Upper Tribunal to refer four crucial questions to the CJEU under Article 267 TFEU to determine the applicability of the Surinder Singh principle to unmarried partners.

Analysis

Precedents Cited

The judgment extensively references foundational EU cases that shape the understanding of free movement and family rights. Key among these are:

Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department (Case C-370/90): Established that EU citizens exercising free movement rights can invoke similar rights upon their return to their home Member State, extending certain family rights.
Minister Voor Integratie v Eind (Case C-291/05): Affirmed that children of EU citizens have right to residence, even as third-country nationals.
Metock v Minister for Justice, Equality and Law Reform (Case C-127/08): Determined that the Citizens Directive precludes Member States from imposing requirements unrelated to the relationship's substantive aspects, such as prior lawful residence in another Member State.
O, B, S and G (Cases C-456/12 and C-457/12): Expanded derived residence rights to family members beyond spouses, including third-country nationals in durable relationships.
Osoro (Surinder Singh) [2015] UKUT 00593 (IAC): Reviewed the application of the Surinder Singh principle in light of newer CJEU jurisprudence.

Legal Reasoning

The core legal contention revolves around whether the Surinder Singh principle, originally applicable to spouses, can be extended to unmarried partners. The Upper Tribunal identified a potential conflict between Article 3 of Directive 2004/38/EC (Citizens Directive) and the UK's EEA Regulations, specifically Regulation 8, which does not recognize unmarried partners as 'EEA nationals' equivalents. The Tribunal highlighted the principle of non-discrimination on the grounds of nationality, enshrined in Article 18 TEU, arguing that disallowing unmarried partners to benefit similarly to spouses could constitute unlawful discrimination.

The Tribunal also considered the evolving jurisprudence that showcases a purposive and progressive interpretation of EU free movement rights, especially in cases like Metock and O, B, S and G, which recognize broader family unit definitions. The absence of a clear trigger for extending Surinder Singh to unmarried partners indicates a potential area for legislative and judicial development.

Impact

The outcome of the CJEU's ruling on the referred questions could significantly influence UK immigration policies, especially post-Brexit, where UK courts might still consider existing EU jurisprudence for consistency. A favorable interpretation extending the Surinder Singh principle to unmarried partners would enhance protections for non-EU family members in durable relationships, aligning UK law with broader EU practices. Conversely, limiting the principle to married couples could result in heightened scrutiny and potential discrimination against unmarried partners.

Complex Concepts Simplified

Surinder Singh Principle

This principle allows British citizens who have exercised their EU free movement rights in another Member State to return to the UK with their non-EU family members under EU law protections, preventing discrimination based on nationality.

Article 267 TFEU

This article provides courts within the EU Member States the ability to seek preliminary rulings from the CJEU on questions regarding the interpretation or validity of EU law. It ensures uniform application across the Union.

Citizens Directive (Directive 2004/38/EC)

A key piece of EU legislation that outlines the rights of EU citizens and their family members to move and reside freely within the EU Member States, setting the standards for entry and residence conditions.

Article 18 TEU

This article prohibits any discrimination based on nationality within the scope of EU law, ensuring that all EU citizens are treated equally regardless of their Member State of origin.

Conclusion

The Banger case underscores the evolving landscape of EU free movement and family rights, challenging the boundaries of established principles like Surinder Singh. By questioning whether unmarried partners should enjoy similar protections as spouses, the case catalyzes a critical examination of non-discrimination in immigration law. The CJEU's forthcoming ruling will not only clarify the extent of the Surinder Singh principle but also potentially set a precedent for increasing inclusivity within EU family rights frameworks. For practitioners and stakeholders, this case highlights the necessity of aligning national immigration policies with broader EU jurisprudential trends to ensure equitable treatment of all family members, irrespective of marital status.