Right of Appeal; another chance for EEA extended family members

In Banger (Unmarried Partner of British National) [2017] UKUT 125 (IAC) the CJEU recently held that the historic decision in Surinder Singh (R v Singh (1992), applies to an extended family member. The judge considered whether no appeal rights against residence card applications are compatible with EU law.

The CJEU held that article 3(2) makes available a redress procedure, whereby a national court must be able to evaluate whether the refusal decision rests on “a sufficiently solid factual basis” and whether the decision-maker complied with the requisite procedural safeguards governing any denial of entry or residence.

In light of this Judicial review is not considered to be an effective remedy because judicial review applications are wholly concerned with the decision-making process rather than the decision itself.

It is important to note, decisions to refuse to issue the following to an Extended family member have been expressly excluded from the definition of an “EEA decision” in regulation 2(1) in the 2016 Regulations:

• an EEA family permit;
• a registration certificate; or
• a residence card to an EFM

This means that the irrespective of the ratio of Khan CJEU’s answer seems to have left little doubt that EFMs are entitled to a right of appeal and that judicial review cannot suffice as sufficient redress in that regard.

Therefore if you have been refused within the last three months without a right of appeal you may be just in time to challenge the decision for a right of appeal.

Disclaimer:

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Adivis and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Adivis. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Adivis.

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