Secretary of State for the Home Department v Rozanne Banger.
Date: 2018-07-12
18


First of all, it must be borne in mind that as the Court has repeatedly held, even if, formally, the referring court has limited its questions to the principles set out in the judgment of 7 July 1992, Singh (C‑370/90, EU:C:1992:296) and to Directive 2004/38, that does not prevent the Court from providing the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has specifically referred to them in the wording of its questions (see, to that effect, judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 22 and the case-law cited).
21


It is the Court’s established case-law that the purpose of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States, which is conferred directly on citizens of the Union by Article 21(1) TFEU, and that one of the objectives of that directive is to strengthen that right (judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 35, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 18).
23


The Court has held, as regards Article 3(1) of Directive 2004/38, that it follows from a literal, contextual and teleological interpretation of the provisions of that directive that Directive 2004/38 governs only the conditions determining whether a Union citizen can enter and reside in Member States other than that of which he is a national and does not confer a derived right of residence on third-country nationals, who are family members of a Union citizen, in the Member State of which that citizen is a national (judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 20 and the case-law cited).
27


However, the Court has acknowledged, in certain cases, that third-country nationals, family members of a Union citizen, who were not eligible on the basis of Directive 2004/38 for a derived right of residence in the Member State of which that citizen is a national, could, nevertheless, be accorded such a right on the basis of Article 21(1) TFEU (judgment of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 23).
28


That consideration is based upon settled case-law, according to which, in essence, if no such derived right of residence were granted to such a third-country national, a Union citizen would be discouraged from leaving the Member State of which he is a national in order to exercise his right of residence under Article 21(1) TFEU in another Member State because he is uncertain whether he will be able to continue in his Member State of origin a family life which has been created or strengthened, with that third-country national, in the host Member State, during a genuine residence (see, to that effect, judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraph 54, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 24).
29


According to that case-law, the conditions under which that derived right of residence may be granted should not, in principle, be stricter than those provided for by Directive 2004/38 for the grant of such a right of residence to a third-country national who is a family member of a Union citizen in a case where that citizen has exercised his right of freedom of movement by becoming established in a Member State other than that of which he is a national. Even though Directive 2004/38 does not cover the return of that Union citizen to the Member State of which he is a national in order to reside there, it should be applied by analogy (see, to that effect, judgments of 12 March 2014, O. and B., C‑456/12, EU:C:2014:135, paragraphs 50 and 61 and the case-law cited, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 25).
31


According to the Court’s case-law, Article 3(2) of Directive 2004/38 does not require the Member States to accord a right of entry and residence to third-country nationals envisaged in that provision, but imposes an obligation on those Member States to confer a certain advantage on applications submitted by the third-country nationals envisaged in that article, compared with applications for entry and residence of other nationals of third countries (see, to that effect, judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 21).
38


The Court has held that, in order to meet that obligation, Member States must, in accordance with the second subparagraph of Article 3(2) of Directive 2004/38, make it possible for persons envisaged in the first subparagraph of Article 3(2) of that directive to obtain a decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons (judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 22).
39


When undertaking that examination of the applicant’s personal circumstances, it is incumbent upon the competent authority to take account of the various factors that may be relevant in the particular case (see, to that effect, judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 23).
40


In the light both of the absence of more specific rules in Directive 2004/38 and of the use of the words ‘in accordance with its national legislation’ in Article 3(2) of that directive, each Member State has a wide discretion as regards the selection of the factors to be taken into account. Nonetheless, Member States must ensure that their legislation contains criteria which are consistent with the normal meaning of the term ‘facilitate’ and which do not deprive that provision of its effectiveness (see, to that effect, judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 24).
48


Since the provisions of Directive 2004/38 must be interpreted in a manner which complies with the requirements flowing from Article 47 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 4 June 2013, ZZ, C‑300/11, EU:C:2013:363, paragraph 50), those persons must have available to them an effective judicial remedy against a decision, under that provision, permitting a review of the legality of that decision as regards matters of both fact and law in the light of EU law (see, to that effect, judgment of 17 November 2011, Gaydarov, C‑430/10, EU:C:2011:749, paragraph 41).
50


As regards the content of those procedural safeguards, according to the Court’s case-law, a person envisaged in Article 3(2) of that directive is entitled to a review by a court of whether the national legislation and its application have remained within the limits of the discretion set by that directive (judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 25).
51


As regards its review of the discretion enjoyed by the competent national authorities, the national court must ascertain in particular whether the contested decision is based on a sufficiently solid factual basis. That review must also relate to compliance with procedural safeguards, which is of fundamental importance enabling the court to ascertain whether the factual and legal elements on which the exercise of the power of assessment depends were present (see, by analogy, judgment of 4 April 2017, Fahimian, C‑544/15, EU:C:2017:255, paragraphs 45 and 46). Those safeguards include, in accordance with Article 3(2) of Directive 2004/38, the obligation for those authorities to undertake an extensive examination of the applicant’s personal circumstances and to justify any denial of entry or residence.