- BY Sanaz Saifolahi
Reference made to CJEU on rights of appeal for extended family members
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Anthony Metzer QC led Sanaz Saifolahi, on behalf of the Respondent, before the President of the Upper Tribunal, Mr Justice McCloskey, on the application of the Surinder Singh rationale to the unmarried partner of a British National. There are currently no reported cases on this issue.
The Respondent is in a longstanding durable relationship with a British National. The couple had previously lived in The Netherlands before returning to the UK.
The Respondent then applied for a Residence Card relying on Surinder Singh. The Secretary of State for the Home Department (now the Appellant) refused to grant a Residence Card, on the basis that Regulation 9 of the Immigration (EEA) Regulations 2006 did not apply as the couple were not married when they were living in The Netherlands.
The Respondent initially succeeded in her appeal before the First Tier Tribunal but the SSHD successfully applied for permission to appeal to the Upper Tribunal.
Before the President, it was argued that:
- the rationale in Surinder Singh should apply equally to married and unmarried couples
- primary European law prohibits discrimination on the grounds of nationality and sexual orientation
- Regulation 9 of the EEA Regulations is therefore incompatible with primary European law and has not adopted the rationale in Surinder Singh.
The Secretary of State then raised an issue of jurisdiction following the case of Sala (EFMS: Rights of Appeal) [2016] UKUT 411. Further written submissions were filed and served by both sides addressing Sala and the jurisdiction of the Tribunal.
It was successfully argued on behalf of the Respondent that the Order for Reference to the CJEU needed to be made to determine the issue of jurisdiction.
By Order dated 20th January 2017, the President made an Order for Reference to the Court of Justice of the European Union. One of the Reference questions is:
Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive?
This Reference question is directly relevant to the issue of the jurisdiction of the Tribunal following the case of Sala and will be relevant to extended family members who currently have no right of appeal to the Tribunal. The remaining Reference questions relate to the application of Surinder Singh to the unmarried partner of a British National. The case remains unreported at present. Anthony Metzer QC and Sanaz Saifolahi of Goldsmith Chambers act for the Respondent.
Contributed by Anthony Metzer QC and Sanaz Saifolahi of Goldsmith Chambers
One Response
Dear Mr Yoe,
The Home Office made an application for permission to appeal and the permission was refused. However, the Home Office still reluctant to amend the current Rules regarding ECAA appeals (just like they amended the Rules regarding EEM appeal rights following SALA.
Most interestingly the Home Office is claiming AKTURK is NOT binding upon them. They are using some common arguments (template) in refusing the admin reviews and in the acknowledgement of services of judicial review matters an in-country right of appeal has been pleaded with reference to AKTURK.
I quote their common arguments as under:
“DECISION IN THE LEAD CASE OF AKTURK:
In AKTURK Holman J quashed the Respondent’s decision to refuse to grant Mr Akturk leave to remain under the business provisions of the ECAA, and ordered the Respondent to reconsider the Respondent’s application. It was therefore not necessary for him to go on to consider whether the removal of a statutory right of appeal was compatible with the ECAA. However, Holman J held, obiter, that the right of appeal for Turkish citizens under the ECAA is incompatible with the ECAA in that it breaches the requirements of Article 41 (1) of the Additional Protocol to the ECAA and that incompatibility is not avoided or removed by the introduction of Administrative Review in such cases. It is the Respondent’s position that, as this finding is obiter, it is not binding on the Upper Tribunal. Mr Justice Holman himself noted:
“It may be that upon reconsideration the SSHD will grant his application. In that event, the issues raised under issues (2) and (3), relating respectively to the lawfulness of the guidance and the removal of the right of judicial appeal, will be of no, or at most academic, interest to this claimant. In those circumstances, I have hesitated long before deciding whether to consider issues (2) and (3), upon which anything I say may arguably be obiter. In my view, courts of first instance should avoid opining on points not required by the facts and circumstances of the instant case, the more so as issues (2) and (3) are major and not minor. (49)”
The Respondent sought permission to appeal the decision in AKTURK from the Upper Tribunal. This was refused by Holman J on 31 March 2017. In his reasons for refusing the appeal, in regard to the right of appeal Holman J stated.
“l agree that my observations on this issue may be said to have been obiter.”
He proceeded to state that it is arguable that any consideration of the issue by the Court of Appeal should be deferred until a case arises in which the decision on this issue is ratio (and therefore binding).
It is, therefore, clear that Holman J does not consider his findings on this issue to be binding.
Further, Holman J dismissed the challenge to the Guidance (as argued before him, and dealt only with page 33, which refers to ‘Evidence the funds or assets are the Claimant’s).”
Do you have any comment regarding the above?
Kind Regards,
Cemal Turk
Solicitor & Partner
London Solicitors LLP
cemal@thelondonsolicitors.co.uk