1. The duty to facilitate entry arises when the partner with whom the Union citizen has a durable relationship duly attested. That is a continuing requirement in order for someone to be a beneficiary; there has to be an extant nexus with the EEA national.
2. Accordingly, a non-EEA national, whose durable relationship has ended, no longer comes within the ambit of article 3 (2) of the Directive from that point and so there can at that point be no duty on a member state to facilitate that individual’s entry to or residence in that state.
3. Even if Article 3 (2)(b) of the Directive were not clear and precise, it cannot be argued that the Directive can be read such that article 13 should apply to those in durable partnerships.
4. There is nothing in the Directive, or the case law of the CJEU to suggest that the differential treatment of married and unmarried partners within the Directive is impermissible. The right under EU law is for applications to be facilitated; that is the limit of the right, subject to it being effective in the sense of in accordance with the principles of EU law. Not permitting those who are no longer beneficiaries (as defined) to remain does not make that right ineffective, given that the underlying law, as noted above, requires a continuing nexus with the EU national to exist.
Judges:
Upper Tribunal Judge Rintoul
Upper Tribunal Judge Rimington
Citations:
[2021] UKUT 319 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 11 February 2022; Ref: scu.671706