This expert opinion seeks to answer the question, whether the duty to ‘facilitate’ laid down in Article 3(2)(b) of Directive 2004/38/EC leads to an obligation under Union law for the Member States to assess and evidence the starting date of the lawful residence of the unmarried partner. The expert opinion first describes the right of residence of family Members of Union citizens under Directive 2004/38/EC. It explains that unmarried partners of Union citizens do not enjoy an automatic right to entry and residence as a corollary of the Directive. However, the Directive does require Member States to facilitate their entry and residence. Then the expert opinion investigates the content of the duty to ‘facilitate’ and argues that the assessment of evidence of the starting date of the residence right of an unmarried partner falls within the scope of this duty as well as the right to an effective remedy guaranteed by Article 47 of the EU Charter on Fundamental Rights. It contends that the duty to facilitate obliges Member States to assess and evidence the starting date of lawful residence of unmarried partners of Union citizens if this date is material in both preventing the loss of rights and the attainment of stronger rights. Consecutively, the implementation of the duty to facilitate in the Netherlands is discussed. The Netherlands provides unmarried partners of Union citizens with a residence right analogous to that of the family members defined in Article 2(2) of the Directive. Finally the expert opinion shows that in the Netherlands the unmarried (ex) partner of a Union citizen can only have the starting date of the lawful residence assessed in the context of his or her application for retention of his or her residence right or permanent residence. It is argued that this situation is not in conformity with the duty to facilitate and the EU right to an effective remedy.
In a judgment of 2 February 2016, the court of Amsterdam referred to this expert opinion, but rejected the appeal. See: Uitspraak Rechtbank Amsterdam