Tribunal Finds that durable partner may retain residence

[Obie]

Tribunal Finds that Unmarried Domestic Violence Survivors Have EU Law Rights.

I believe this is an important judgement, that will help a great deal of non-EEA partner of an EEA national, who are facing appauling treatments from their abuser, who happen to be the sponsor of their visa at the same time.

[Greenie]

Note that the determination is unreported and would not be binding on future decisions by the tribunal.

[Obie]

I am not arguing it is binding on any judges, but it is certainly a persuasive document to supply to a judge. It could even force a preliminary ruling. It will be interesting to see how UKBA proceed.

[Directive/2004/38/EC]

Note that the determination is unreported and would not be binding on future decisions by the tribunal.

How do you figure this sort of thing out?

[Greenie]

I am not suggesting that you said it from would be binding rather i am pointing out that it is not so that those who might wish to rely on the determination do so with caution.

In order to rely on the judgement an appellant would need to obtain a copy of it and would need to seek permission from the judge to refer to an unreported determination in their appeal. I doubt ukba will do anything differently in the absence of a reported determination or decision from a higher court.

[Greenie]

Note that the determination is unreported and would not be binding on future decisions by the tribunal.

How do you figure this sort of thing out?

That is is unreported or that it is not binding?

[Directive/2004/38/EC]

How about both! :)

[Greenie]

The Article states at the beginning that it is unreported.

For why it is not binding, see here:

citing authorities and legal research

[Obie]

Well if UKBA does not appeal this decision which i am sure they will not, and on the basis that like cases should be treated alike, i believe other people in similar circumstance could succeed

[Greenie]

they could succeed yes but I am merely pointing out that they are not bound to succeed, a different tribunal could come to a different conclusion as to their interpretation of the law.

[Directive/2004/38/EC]

Who decides whether a case is reported or not, and on what basis?

[Obie]

Well there is a committee of senior judges that decides and approve reported cases.

I believe this case is legally sound as it is based on thr ECJ judgement in Reeds, Treaty Rights , Fundamental Rights. I believe it is based on the UK's treatment of Common law couples in the UK who have been victim of domestic violence.

There is also a principle in community law, that it provisions has to be interpreted uniformly in all the member states and by all the courts. Therefore if a higher court choose to follow a different course, i believe a reference will be necessarily.

This is certainly not the end of this matter but it has certainly build a foundation.