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Immigration & Asylum Law Update: Durable Partners of EEA National After Surviving Domestic Abuse Successes

by Kenworthy's Chambers 07/06/2018

Earlier this year, we posted about Mark Schwenk's success in the case of an unmarried partner of a European Union citizen, who had successfully retained her right of residence upon the breakdown of their relationship due to domestic violence. The full article can be found here. After a long legal battle led by Mark Schwenk, instructed by Greater Manchester Immigration Aid Unit, the Appellant had gained her retained right of residence card, but was then refused permanent residence. Mark subsequently appeared as counsel in her permanent residence appeal, which was allowed. We are pleased to update that the Appellant has now received her permanent residence card from the Home Office.

In similar news, Mark Schwenk has been granted permission to proceed with a judicial review on another case that raises the same issue, where the Applicant's unmarried partnership to a Union citizen broke down due to domestic violence. In granting permission, Upper Tribunal Judge Bruce refers to the case of Banger C- 89/17, noting that this is a case that raises issues as to the disparity in treatment between spouses/civil partners and extended family members who are in durable relationships with Union citizens. This citation refers to the recent opinion of Advocate General Bobek on the 10 April 2018, dealing with a reference from the UK in the case of Secretary of State for the Home Department v Rozanne Banger.

The issue in Banger was whether the UK had a duty to facilitate the entry and residence of an unmarried partner of a British national in circumstances where the partner had joined the British national in another member state, and they were now seeking to return to the UK utilising the Surinder Singh principles. The Advocate General concludes that there is a duty on Member States to facilitate the entry and residence of the partner with whom the Union citizen has an unmarried (or durable) relationship, duly attested. Member States must conduct an extensive examination of the partner's personal circumstances to justify a refusal of entry, and the fact that they were not married was not a justifiable reason to deny entry. The Advocate General's view is that these principles apply to unmarried partners who are seeking to return with the Union citizen under the Surinder Singh principles.

These cases thus provide further hope to those seeking to retain rights of residence when their relationships with Union citizens break down due to domestic violence before they are married.