CJEU – Primus Solicitors

In Case C-444/17 Préfet des Pyrénées-Orientales v Abdelaziz Arib, Procureur de la République, Procureur général près la cour d’appel de Montpellier, Advocate General Szpunar proposes that the Court should rule that the ‘Returns Directive’ must be applied to third-country national where internal border controls have been reinstated. Mr Abdelaziz Arib, of Moroccan nationality, was checked, in French territory near to the land border between France and Spain, aboard a coach coming from Morocco. He had previously been subject to an expulsion order removing him from French territory. Suspected of having entered French territory illegally, he was arrested and held in policy custody and the préfet des Pyrénées- Orientales (Prefect of the Département of Pyrénées-Orientales, France; ‘the préfet’) adopted an order requiring him to leave French territory and ordered his administrative detention. His detention in police custody was rescinded by the tribunal de grande instance de Montpellier (Regional Court, Montpellier, France) and, as a consequence, the subsequent proceedings, including the administrative detention, since it was not possible to place him in custody. The cour d’appel deMontpellier (Court of Appeal, Montpellier, France) confirmed the decision and the préfet appealed to the Cour de cassation (Court of Cassation, France).

The principle of freedom of movement within the Schengen Area entails an absence of border control of persons crossing the internal borders between the Member States. The check at issue was made in June 2016 during the period of temporary reinstatement in France of internal border controls. Since France had declared a state of emergency, checks at the internal borders, in accordance with the provisions of the Schengen Border Code or Regulation (EU) 2016/399 had been reinstated in the fact of a serious threat to public policy or internal security.

Continue reading “AG Szpunar on the Returns Directive” →

Article 21 TFEU, Citizens Directive, CJEU, EU Law

CJEU: The Judgment in Banger Case C-89/17

July 12, 2018July 12, 2018 Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

In Secretary of State for the Home Department v Banger (Citizenship of the European Union – Right of Union citizens to move and reside freely within the territory of the European Union – Judgment) [2018] EUECJ C-89/17, the CJEU has held as follows.

Where an EU citizen returns to his Member State of origin, that Member State must facilitate the entry and residence of the non-EU partner with whom that citizen has a durable relationship. A decision to refuse such a residence authorisation to the non-EU partner must be founded on an extensive examination of the applicant’s personal circumstances and be justified by reasons

Ms Rozanne Banger, a South African national, is the partner of Mr Philip Rado, a British national. Ms Banger and Mr Rado lived together in South Africa between 2008 and 2010 before moving to the Netherlands. Ms Banger was granted a residence card by the Netherlands authorities in her capacity as an extended family member of an EU citizen, in accordance with the EU directive on the freedom of movement of EU citizens and their family members (‘the directive’).

The directive requires Member States to facilitate the entry and residence of the partner with whom a EU citizen has a durable relationship, where that EU citizen has moved to a Member State other than that of which he is a national. In relation to an application from such a partner, Member States are required to undertake an extensive examination of his personal circumstances and to justify any refusal of entry or residence.
Continue reading “CJEU: The Judgment in Banger Case C-89/17” →

B2R, CJEU, EU Law, Family Law, Hague Convention

AG’s Opinion in Case C-335/17 Valcheva v Babanarakis

April 13, 2018 Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Advocate General Szpunar proposes that the Court of Justice rules that in matters of parental responsibility rights of access include the rights of access of grandparents. EU law provides for a single and uniform rule of jurisdiction which is that of the authorities of the Member State of the child’s habitual residence. Ms Valcheva, a Bulgarian national, is the maternal grandmother of a minor child born in 2002. Since his parents’ divorce, the child has been habitually resident in Greece with his father, a Greek national. His grandmother wishes to obtain rights of access. Finding that she was unable to maintain quality contact with her grandson and having unsuccessfully sought the support of the Greek authorities, she applied to the Bulgarian courts for a determination of arrangements for her to exercise rights of access to her grandson.

She requested that she see him regularly one weekend each month and that he stay at her home for two or three weeks during his holidays. The Bulgarian courts of first instance and appeal dismissed the action on the basis of lack of jurisdiction on the ground that an EU Regulation (Brussels IIa Regulation) provides for the jurisdiction of the courts of the Member State in which the child has his habitual residence (here, the Greek courts). Hearing the case at last instance, the Varhoven kasasionen sad (Supreme Court of Cassation, Bulgaria) takes the view that in order to determine the court having jurisdiction, it is essential to ascertain whether or not the Brussels IIa Regulation applies to the rights of access of grandparents.

Continue reading “AG’s Opinion in Case C-335/17 Valcheva v Babanarakis” →

Citizens Directive, CJEU, EU Law, UTIAC

AG’s Opinion in Case C-89/17 SSHD v Banger

April 13, 2018April 13, 2018 Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Advocate General Bobek has opined that where an EU citizen returns to his Member State of origin, that Member State must facilitate the entry and residence of the citizen’s non-EU partner with whom he has created or strengthened family ties in another Member State. The requirement to facilitate does not confer an automatic residence right but does require the Member State to undertake an extensive examination of the personal circumstances of the non-EU citizen and justify any refusal of entry or residence. Ms Banger, a South African national, is the partner of Mr Rado, a British national. Ms Banger and Mr Rado lived together in South Africa between 2008 and 2010 before moving to the Netherlands. Ms Banger was granted a Dutch residence card in her capacity as an extended family member of an EU citizen, in accordance with the free movement directive.

The directive requires Member States to facilitate the entry and residence of the partner of an EU citizen with whom he/she has a durable relationship, where the EU citizen has moved to a Member State other than that of which they are a national. In relation to requests made by such persons, Member States are required to undertake an extensive examination of the personal circumstances and justify any refusal of entry or residence. Continue reading “AG’s Opinion in Case C-89/17 SSHD v Banger” →