Retaining residence rights pursuant to the EU law principle of equal treatment
Under EU Directive 2004/38 (‘the Directive’), all EEA nationals have the right to enter and reside in the UK for up to three months. An EEA national will have a right to reside in the UK for more than three months if he or she is exercising Treaty rights as a worker, self-employed person, student with adequate financial resources and comprehensive sickness insurance,2 self-sufficient person with comprehensive sickness insurance, permanent resident or jobseeker.The family members (including spouses and civil partners) of EEA nationals exercising Treaty rights in the UK also have a right to reside here, regardless of their nationalities.
Although unmarried partners are not regarded as ‘family members’ for the purposes of the Directive, the UK is obligated under Articles 3(2) and 7(2) of the Directive to ‘facilitate entry and residence for’ the unmarried partner with whom an EEA national exercising Treaty rights in the UK has ‘a durable relationship, duly attested’.
5. Many third-country-national durable partners of EEA nationals exercising Treaty rights in the UK will possess an EEA family permit or a residence card that was issued on this basis; either of these documents can be submitted as proof that the Home Office has recognised the existence of the partnership. The Immigration (European Economic Area) Regulations 2006 (‘the Regulations’), which the UK has adopted in order to implement the Directive, provide that a durable partner must hold a valid entry or residence document in that capacity in order to enjoy residence rights under EU law. Regulation 7(3) of the Regulations provides that a durable partner who has been issued with an entry or residence document shall enjoy residence rights in the UK as long as she or he continues to satisfy the conditions underlying the grant of the document.
6. Article 13(2)(c) of the Directive provides that the spouse or civil partner of an EEA national who is exercising Treaty rights in the UK can retain his or her residence rights if the marriage or registered civil partnership breaks down and domestic violence occurred whilst it was subsisting; this provision has been implemented in Regulation 10(5)(d)(iv) of the Regulations. However, the Directive is silent as to the rights of durable partners who suffer domestic violence and whose relationships subsequently break down.
7. By contrast, the UK Immigration Rules, which apply to migrants in the UK other than those who are exercising EU free movement rights, provide at Rule 289A that foreign nationals who are residing in the UK as the unmarried partners of British Citizens or settled persons may retain a right of residence if their relationships break down due to domestic violence. These unmarried survivors of domestic violence are entitled to apply immediately for indefinite leave to remain (‘ILR’). Their situation is thus very different to, and much more favourable than, the situation of durable partners of EEA nationals who are exercising Treaty rights in the UK.
8. In its decision in State of the Netherlands v Ann Florence Reed  EUECJ R-59/85 (17 April 1986), the European Court of Justice (now the Court of Justice of the European Union) found that an EU Member State ‘which permits the unmarried companions of its nationals, who are not themselves nationals of that Member State, to reside in its territory cannot refuse to grant the same advantage to migrant workers who are nationals of other Member States’ In other words, if the UK allows the unmarried partners of British Citizens to reside in the UK, it must allow the unmarried partners of EEA nationals exercising Treaty rights to reside here as well.
9. This rule, by extension, necessarily prohibits the UK from imposing conditions that would permit the former unmarried partner of a British Citizen to retain residence rights here based on domestic violence that occurred during the relationship, whilst denying such rights to the former unmarried partner of an EEA national who is exercising Treaty rights here. The EU-law principle of equal treatment, as confirmed in Netherlands v Reed, continues to apply and mandates that the UK provide at least the same residence rights for the former durable partners of EEA nationals as it does for the former durable partners of British Citizens and settled persons.