Recap on appeal rights for EEA extended family members
I have previously blogged about the appeal rights of extended family members under the EEA Regulations, which were, of course, drastically changed by Sala (EFMs: Right of Appeal)  UKUT 411 (IAC), where the Upper Tribunal held that, as applications for EEA documentation by extended family members required the exercise of discretion by the Secretary of State, they were not decisions concerning a person’s entitlement to be issued with a Residence Card. As a result, such a decision did not meet the definition of “EEA decision” and did not carry a right of appeal under Regulation 26 of the Immigration (European Economic Area) Regulations 2006.
Appeal rights for EEA extended family members
Happily for applicants under the 2006 Regulations, Khan v Secretary of State for the Home Department  EWCA Civ 1755, overturned this. The Supreme Court in SM (Algeria) v Entry Clearance Officer, UK Visa Section  UKSC 9 confirmed that the approach in Khan was correct.
However, in relation to the Immigration (European Economic Area) Regulations 2016 – the current Regulations, as set out here, Khan has no application.
Regulation 36 sets out that ‘EEA decisions’ may be appealed. The current definition of an ‘EEA decision’ incorporates Sala, in that it is a ‘decision under the Regulations’, but one that:
does not include a decision to refuse to issue a document under regulation 12(4) (issue of an EEA family permit to an extended family member), 17(5) (issue of a registration certificate to an extended family member) or 18(4) (issue of a residence card to an extended family member…
This means that there is no right of appeal for extended family members, and the only way to challenge a decision is by way of judicial review.
The Court of Justice case of Case C-89/17, Banger, considered whether a full merits appeal or judicial review or administrative review were sufficient to be an effective remedy to meet the procedural safeguards in the Citizens Directive. The AG Opinion was considered here, and the Court of Justice decision was delivered on 12 July 2018.
The relevant Upper Tribunal question was summarised at paragraph 43:
in essence, whether Article 3(2) of Directive 2004/38 must be interpreted as meaning that third-country nationals envisaged in that provision must have available to them a redress procedure whereby matters of both fact and law may be reviewed by the court, in order to dispute a decision to refuse a residence authorisation taken against them.
The Court of Justice considered the definition of ‘family member’ throughout the Directive, and the relevance of Article 47 of the Charter of Fundamental Rights of the European Union to the level of procedural safeguard required.
In paragraph 49 the Court found that:
it must be found that the procedural safeguards provided for in Article 31(1) of Directive 2004/38 are applicable to the persons envisaged in point (b) of the first subparagraph of Article 3(2) of that directive.
Such a person is entitled to a review by a court of whether the national legislation and its application have remained within the limits of the discretion set by the Directive.
The Court of Justice recognised the discretion of national authorities, but in paragraph 51 found that:
the national court must ascertain in particular whether the contested decision is based on a sufficiently solid factual basis…
The conclusion at paragraph 52 was that Article 3(2):
must be interpreted as meaning that the third-country nationals envisaged in that provision must have available to them a redress procedure in order to challenge a decision to refuse a residence authorisation taken against them, following which the national court must be able to ascertain whether the refusal decision is based on a sufficiently solid factual basis and whether the procedural safeguards were complied with. Those safeguards include the obligation for the competent national authorities to undertake an extensive examination of the applicant’s personal circumstances and to justify any denial of entry or residence.
The consequence of this decision is that judicial review cannot be seen to be an adequate remedy, as this does not sufficiently allow assessment of the factual basis of a refusal in the same way as an appeal court.
The Regulations have yet to be amended in relation to this.
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