Home Office recognise deficiency in EEA Regulations regarding appeal rights for extended family members
Correspondence published by the Upper Tribunal on 3rd September 2019 has revealed that the Home Office is unsure when the Immigration (EEA) Regulations 2016 will be amended to fully recognise appeal rights for extended family members of EEA nationals, but that appeals should still be heard by Tribunals.
EEA Extended Family Member Rights of Appeal
The question of whether the extended family members of EEA nationals have the right of appeal was adjudicated by the Court of Justice in Banger (Case C-89/17, and the journey from appeal rights to no right of appeal and back is detailed here.
The Upper Tribunal published two letters further to the introduction of the Immigration (European Economic Area Nationals) (EU Exist) Regulations 2019, one written on behalf of the Secretary of State for the Home Department, and the Honourable Mr Justice Lane’s response.
The letter of 19 June 2019 of Nicola Smith, Deputy Director of the European Migration and Citizens’ Rights Unit on behalf of the SSHD, acknowledges that following Sala (EFMs: Right of Appeal)  UKUT 411 (IAC), the right of appeal was removed from the 2006 Regulations, that Banger followed and that “the responsibility for implementing this ruling fell to the SSHD”.
The letter acknowledges that the SSHD has only partially managed to implement the decision:
“The 2019 Regulations… classified such decisions as ‘EEA decisions’, bringing them into scope of Regulations 36(1) of the 2016 Regulations and allowing for a right of appeal”
“The 2019 Regulations neglected to remove the requirements within regulation 36(4), which provide that, in order to exercise a right of appeal, any extended family member (other than a durable partner extended family member covered by regulation 36(3)) must produce a valid passport and either an EEA family permit… or proof that the criteria in regulation 7 are met (which are the criteria that an individual who claims to be a direct family member of an EEA national must meet)…”
The problem with this is recognised in the SSHD letter:
“In practice, the requirements of regulation 36(4) mean that extended family members can only exercise a right of appeal against the decision to refuse to issue residence documentation if they are actually family members… Such restrictions render access to a right of appeal difficult in certain cases and this runs contrary to the SSHD’s intention and the directly effective ruling of the CJEU in Banger”
The proper solution is to update the Regulations, but:
“…given the present political uncertainties, it is difficult to confidently predict when we will be able to lay the necessary statutory instrument”
To avoid the situation where a Tribunal refuses to hear appeals, the SSHD asked the Tribunal to treat the letter as an acknowledgement of the issue, and “as an invitation to read down the restrictive provisions of regulation 36(4), on the basis that the CJEU’s ruling in Banger is directly effective on the UK”.
The Honourable Mr Justice Lane’s letter of 1 July 2019 was drafted after discussions with Michael Clements, the President of the Immigration and Asylum Chamber of the First-tier Tribunal, and accepted that the Home Office had acknowledged the problem with the 2016 Regulations and that Presenting Officers would not make any procedural arguments under the Regulations.
The letter also set out that, while it was unlikely that an extended family member would be found by a judge of the First-tier Tribunal to have no right of appeal, this possibility could not “entirely be excluded”:
“I am, nevertheless, able to confirm that both Mr Clements and I would make appropriate arrangements to enable a challenge to any such finding to be adjudicated upon by the Upper Tribunal as a matter of urgency.”
Overall, this is positive news for Appellants, as the Home Office is acknowledging that extended family members do have the right of appeal, and even where a First-tier Tribunal Judge does not accept this, the Upper Tribunal should be able to hear a challenge without much delay.
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