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The thorny question of what rights extended family members have under EU Law (relying on the legal principles in Surinder Singh) has been ruled on in the European Court of Justice in the recent case of C89/17 Banger v. UK.

Surinder Singh principles relate to the rights of family members of UK citizens (who have been exercising treaty rights in an EU country) to return to the United Kingdom with the UK citizen and to enter the United Kingdom on the basis of the EU Regulations rather than the British Immigration Rules. The rationale behind the principles is that to not allow this would be a serious impediment to free movement as it could potentially strand those exercising treaty rights in other EU countries and prevent the EU national returning to their country of origin along with their family members.

Although there have been tribunal decisions which indicated that the right also applied to extended family members the Government have fiercely resisted this and routinely refused such applications.

In its decision the court extended the principle to include extended family members – the most obvious example is of a cohabiting spouse in a durable relationship.

Banger was a South African national partner of a UK spouse who had most recently exercised treaty rights in the Netherlands between 2010 and 2013. Their application was refused under Regulation 9 of the then 2006 Regulations (that deals with Surinder Singh applications) on the basis that it only catered for applications from spouses or civil partners as only they could be considered a family member of that national. 

The key point of the determination is that while there is no automatic right for an extended family member to be issued with a residence card their entry should be facilitated, there should be an extensive examination of their circumstances and refusal must be properly justified with reasons.

This decision may also impact on those who will be able to take advantage of the Government’s proposals on Brexit (which caters for Surinder Singh cases) as it potentially increases the scope of family member entitled to benefit.

Right of Appeal

The case also potentially impacts on the nature of any legal redress an applicant may have in the event of a refusal of such applications. Following Sala the 2016 Regulations made no provision for any right of appeal and instead there is only the expensive option of a Judicial Review to challenge such refusals.

The court in Banger held that if an application was refused then an extended family member must have open to them, “a redress procedure” which allows a court to “ascertain whether the refusal decision is based on a sufficiently solid factual basis”. Judicial Review is a very limited remedy which only allows the court to comment on the legality or otherwise of the decision. It does not allow the court to substitute the decision of the Secretary of State with its own decision. Whether or not Judicial Review provides an adequate “redress procedure” remains open to question.

The Government needs to respond to this decision but in time honoured fashion it is unlikely to do so speedily.

This decision, however, represents a step forward and it demonstrates that for many years Home Office decision makers have been routinely and erroneously refusing such applications. This is clearly a contentious and complex area on which solicitors in Drummond Miller are more than happy to advise.