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Extended family members denied an appeal can go ahead and lodge one

Extended family members denied an appeal can go ahead and lodge one

Banger (EEA: EFM – Right of Appeal) [2019] UKUT 194 (IAC) has finally reached the end of the road. This is the case that went up to the Court of Justice of the European Union on, essentially, two issues:

  1. Does the Surinder Singh route apply to durable parters? and
  2. Are extended family members entitled to a full appeal on the merits, rather than a judicial review on an error of law?

The CJEU said “yes” to both, as we reported at the time: Court of Justice finds Surinder Singh applies to extended family members.

The case has now returned to the Upper Tribunal for a final decision, some six years after Ms Banger was first refused a residence card. Those who benefit from this decision should spare a thought for the stress, inconvenience and cost to which the lead litigant has been exposed over these years and the hard work put in by her legal team.

The Home Office had already agreed to issue a residence card to Ms Banger (although failed to actually issue it). The appeal nevertheless proceeded at Ms Banger’s request.

There is a tranche of extended family members who have been denied a proper statutory right of appeal. After the disastrously wrong Sala case, extended family members were wrongly denied a right of appeal under the Immigration (European Economic Area) Regulations 2006. Once Sala was overturned, those affected could go ahead and lodge an appeal and request an extension of time.

In the meantime, though, the Home Office had brought into effect the Immigration (European Economic Area) Regulations 2016, which denied the same right of appeal on a statutory basis. An amendment conferring a right of appeal under the 2016 regulations was eventually laid in response to the CJEU Banger judgment. This right of appeal was not retrospective, though, meaning that there were an unknown number of people who received decisions under the 2016 regulations before the amendment took effect who had no statutory right of appeal.

The tribunal says those affected can do one of two things:

  1. Ask the Home Office for a new decision and then appeal that, or
  2. Just get on with it and lodge an appeal, making sure an extension of time is requested.

The second option is quicker and more convenient and is available because of the direct effect of EU law and the terms of the CJEU Banger judgment.

Or, as the official headnote says:

The Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regs’) specifically excluded a right of appeal for Extended Family Members (‘EFMs’).  The 2016 Regs have been amended pursuant to the Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019, with effect from 29th March 2019, so as to provide EFMs with a right of appeal. This does not have retrospective effect.

It is open to those EFMs against whom a decision was made under the 2016 Regs but before 29 March 2019 to request a new decision from the Secretary of State in order to generate a right of appeal.

Alternatively the EFM may invoke the doctrine of direct effect under EU law in relation to a decision which falls into the lacuna between the 2006 regulations and the amended 2016 regulations, and apply under rule 20 of the Tribunal Procedure (First-tier Tribunal) (IAC) Rules 2014 for an extension of time to provide a notice of appeal to that Tribunal.

That hopefully brings the whole sorry saga of extended family member appeals to an end.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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