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EU law “extended family members” get appeal rights under new regulations
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EU law “extended family members” get appeal rights under new regulations

This is significant: the Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019. The most important of the changes are to give non-EU extended family members of EU citizens a right of appeal against refusal of a family permit or residence card. The regulations also implement last summer’s Court of Justice ruling allowing extended family members to avail of the Surinder Singh immigration route.

What is an extended family member?

An “extended family member” is the UK version of what in EU law is called an “other family member” in Article 3 of Directive 2004/38. There are broadly three types of extended family member:

1. Dependants or members of the household of the EEA national who are dependent or members of household both before and after entry

2. A relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner

3. A partner in a “durable relationship” with the EEA national

The free movement rights of extended family members are less strong than for direct family members such as spouses, children and dependent parents. For example, in the UK an extended family member must be granted a residence card in order to have full free movement rights.

– Colin Yeo

Appeal rights

Appeals for extended family members has a tangled history, with the Upper Tribunal ruling in 2016 that they didn’t exist and the Court of Appeal then reversing that decision about a year later. That result only held good for people applying under an older version of the EEA Regulations, however, with the 2016 edition explicitly ruling out appeal rights.

The Home Office then conceded that the 2016 regulations should also be changed to allow appeal rights, in response to a judicial review challenge. That is carried through in this new statutory instrument:

Regulation 3 concerns the rights of appeal for extended family members of EEA nationals. It amends the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). It does this by making provision for a right of appeal against a decision to refuse to issue an EEA family permit (under regulation 12(4)), a registration certificate (under regulation 17(5)) or a residence card (under regulation 18(4)) to an extended family member of an EEA national.

Explanatory memorandum, paragraph 7.5

The appeal rights change comes into force on the 21st day after the regulations were laid before Parliament, which was 7 March: so 28 March, by my calculations.

Implementing Banger

The regulations also implement the Court of Justice of the European Union ruling in C‑89/17 Banger v UK, also as of 28 March. For background on this case, see Court of Justice finds Surinder Singh applies to extended family members.

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This is mostly done by changing “family members” to “family members and extended family members” in various bits of Regulations 7 and 9 of the EEA Regulations 2016.

Incidentally, we understand that the Banger case itself is listed back before President Lane of the Upper Tribunal on 20 March.

Zambrano carers

We learned from yesterday’s changes to the Immigration Rules that non-EU citizens with a “derivative right to reside” in the UK (Zambrano carers etc) will be able to apply for post-Brexit settled status. There is a technical change made to the EEA Regulations to cater for this, with the explanatory notes saying that the new instrument:

provides scope for individuals with a ‘derivative right’ to reside in the UK under regulation 16 of the 2016 Regulations to be granted leave under the EU Settlement Scheme without losing their derivative right to reside. This is to ensure compliance with the draft Withdrawal Agreement with the European Union, which requires an individual’s EU law rights to run parallel to any scheme leave during the planned implementation period from exit to 31 December 2020.

This also comes into force on 28 March 2019.

Common Travel Area

Finally there is an amendment to the rules on the Common Travel Area. This is a passport-free zone between the United Kingdom and Republic of Ireland. Technically, though, only British and Irish citizens can benefit from it. There are legal restrictions on others entering the UK from Ireland, who can only enter for up to three months without the right to work.

Those restrictions are lifted for EU citizens with settled status:

This Article does not apply to any person who has leave or may be granted leave to enter or remain in the United Kingdom by virtue of Appendix EU to the immigration rules.

This provision comes into force on the date that the UK exits the European Union, whenever that might be.

These regulations are not be confused with two similarly named but more wide-ranging draft statutory instruments published last month, which are more directly to do with Brexit.

Conor James McKinney

CJ is Free Movement's deputy editor.

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