Personal Immigration

Case C-89/17 Banger - Part 2 - Opinion in Court of Justice case on rights to effective remedy of extended family members

[Note: This is the second of two posts.  The first post, here, discusses the decision in relation to the applicability of Surinder Singh to extended family member cases]

Advocate General Bobek delivered his Opinion in the hugely important Banger case on 10 April 2018.  The background is set out here.

In short, Ms Banger made an extended family member application which was refused.  The appeal rights of extended family members in light of the Court of Appeal Khan decision are discussed (here), and Banger has been long awaited.

Opinion

Advocate General Bobek addresses the question in relation to the right of extended family members to an ‘effective remedy’ from §70.

The question referred was:

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?

The Advocate General noted that the question of the Upper Tribunal seemed to be motivated by the fact that a differently constituted chamber of the Upper Tribunal decided that an applicant who is refused a residence card as an ‘extended family member’ does not have a right of appeal to the competent tribunal under Regulation 26 of the EEA Immigration Regulations”, referring, of course, to Sala (EFMs: Right of Appeal) [2016] UKUT 411.

The important point is:

“‘family members’ covered by Article 2(2) of Directive 2004/38 have a right of appeal to the First-tier Tribunal (and subsequently, to the Upper Tribunal). However, in the light of the judgment in Sala, persons covered by Article 3(2) of the directive do not have access to that appeal system.” (§72)

Difficulties in answering the question

The Advocate General did not consider that the fourth question ought to be answered by the Court for the following reasons:

  1.      First, it is not the task of this Court to undertake an examination of the different features of the diverse systems of judicial protection in national law. That would require a detailed examination and evaluation of national law, which is a task for national courts.
  2.      Second, it is even less the task of this Court to carry out such an examination with regard to a rather complex and evolving field of law – which is the nature of judicial review in English law – and then effectively be called upon to arbitrate between the various national actors that may not agree themselves on what the current standards are.
  3.      Third, the preliminary ruling procedure is always tied to a specific dispute in the main proceedings before a national court. Within such a framework, a concrete procedural or substantive provision of national law might indeed be indirectly examined. However, this Court cannot provide for abstract advisory opinions on the (un)suitability of whole areas of law or systems of judicial protection in general, which would, in order to be carried out, involve discussing anything and everything from standing, to costs, time limits, the scope of review, remedies that can be awarded, or means of appeal.

Approach of the Advocate General

However, the Advocate General considered that the Court could provide “clarification on the obligations and requirements under EU law with regard to an effective remedy in the context of an application by analogy of Article 3(2) of Directive 2004/38.” (§81).

Article 15 of the Directive sets out Procedural safeguards which apply to ‘Union citizens and their family members’.  The Advocate General considered the personal scope of Article 15, finding that “although it could be said that extended family members are not covered by the notion of ‘family members’ contained in that provision, a refusal of a residence card to those persons could in fact be rather easily classed as a ‘restriction’ to free movement rights of the Union citizen himself, who is clearly covered.” (§88)

If Article 15 of the Directive did not apply, there would be “no specific rules determining the scope of judicial scrutiny. It is established case-law that in the absence of such specific requirements, those elements must be determined by the system of organisation of the courts of each Member State. That procedural autonomy of the Member States encounters however two limits: the principles of equivalence and effectiveness.” (§94).

Effective judicial protection on the basis of Article 47 of the Charter

Considering the Charter, which undoubtedly applies to extended family members, from §91, the Advocate General stated:

“it has been clear that the principle of effective judicial protection requires that, even in the absence of specific secondary law provisions establishing procedural safeguards, there must be a remedy of a judicial nature against any decisions of national authorities refusing the rights granted by EU law. This obligation also flows from Article 4(3) TEU and Article 19(1) TEU.”

The contentious issue is, rather, the scope and intensity of the judicial scrutiny required. The Advocate General considered the principle of equivalence and the effectiveness of judicial protection.  Equivalence does not apply between family members and extended family members under EU law, and at §98 the Advocate General considered that, as the argument in relation to unmarried partners under national law was not advanced, equivalence should not be considered by the Court.

‘Effectiveness’ falls under two headings: effectiveness as one of the dual requirements under the heading of procedural autonomy of the Member States, and effectiveness qua a fundamental right to an effective judicial remedy under Article 47 of the Charter. (§99)   Effectiveness precludes the Administrative body taking the original decision from reviewing it: there must be impartiality and proper review:

104.the Court has insisted on the need for a thorough review of decisions covering both the facts and the law, in particular where the instruments at issue already contained certain harmonised procedural standards.”

The Advocate General noted at §106 that the ECtHR “has declared on several occasions that judicial review available under English law was sufficient” but that “the ECtHR has found violations of Article 6(1) ECHR where the reviewing court was precluded from determining the central issue in dispute or where the domestic courts considered themselves bound by the prior findings of administrative bodies which were decisive for the outcome of the cases before them, without examining the issues independently”.

Effective judicial protection and Article 3(2) of Directive 2004/38

The crux of the ‘discretion’ inherent in Article 3(2) is discussed from §108 – the Advocate General said “discretion is not code for ‘black box’” and importantly:

“In order to determine whether the limits of the discretion set by the directive have been respected, national courts must be able to review all the procedural aspects as well as the material elements of the decision, including its factual basis.(Emphasis added)

The Advocate General continued:

  1. The elements that must be available for judicial scrutiny flowing from Article 3(2) of the directive are, beyond the requirement of facilitation, essentially threefold: that the decision to be reviewed must be the result of an extensive examination(i), which then logically must be reflected in the reasons given for potentially justifying any denial of entry or residence (ii). Furthermore, that examination must be done on the basis of personal circumstances, which includes the relationship with the Union citizen and the situation of dependence (iii).
  2. All those elements must be reviewable by a court or tribunal. A national court must have the competence to proceed, if it deems necessary, to the verification of the key relevant facts serving as the basis of the administrative decision. It must be possible to gauge whether the reasons adduced by the administration duly correspond to the criteria established by national law, within the limits imposed by Directive 2004/38. It must also be possible to ascertain the sufficiency and adequacy of the justification. In particular, it must be possible to assess whether the specific personal circumstances relevant to the pertinent criteria have been duly examined.
  3. Conversely, as long as all those elements can be reviewed and any administrative decision breaching those requirements can be annulled, an effective remedy under Article 47 of the Charter does not require, in my opinion, the reviewing court or tribunal to have the competence to examine new evidence. Nor does it require it to establish facts not presented before the administrative authority, or to have the power to immediately substitute the administrative decision with its own judgment.
  4. It is for the referring court, which alone has jurisdiction to interpret national law, to determine whether and to what extent the system of judicial review in the main proceedings satisfies those requirements.

Conclusions of the Advocate General

Avoiding casting any aspersions on the remedy of judicial review, the Advocate General concluded at §115 that:

In the light of the foregoing considerations, it is my view that the answer to the fourth preliminary question should be that Article 3(2) of Directive 2004/38 must be interpreted as requiring effective judicial review of decisions denying entry or residence to extended family members, in line with Article 47 of the Charter. It is for the competent national court to ascertain whether the system of judicial review available under national law complies with that requirement.”

Comment

The Advocate General was reluctant to say that judicial review is not an adequate remedy for Article 3(2) family members, but made clear, from §108 onwards, that a review of the facts and law is needed for an effective remedy.

The analysis is obviously very different from the approach in Khan, where the Court of Appeal was able to more closely consider the reasoning in Sala, in relation to the definition of ‘EEA decision’ in Regulation 2 of the Immigration (EEA) Regulations 2006.

The approach of the CJEU is much anticipated by many extended family members who are in a difficult position at present, and possibly reluctant to proceed with judicial review proceedings in light of the costs implications.

The first post about this case addresses the other important element of Banger – the applicability of Surinder Singh to extended family members.

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