This blog is a follow-on of the blog posted on the 27th September 2016 entitled ‘Loss of Appeal rights for extended family members – the case of Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC)” – see /news/2016/09/loss-of-appeal-rights-for-extended-family-members/
In that blog Sarah Jack detailed a decision from the Upper Tribunal where the Tribunal held that there was ‘no statutory right of appeal against the decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member.’ As we detailed earlier in those cases where an extended family member of an EEA national has made an application to reside in the UK, the UK government must undertake an extensive examination of the personal circumstances of the extended family member before a decision is made on whether to grant them permission to come to the UK. However, following Sala, although the government needs to give their reasons for refusing an application for a right to reside by an extended family member, there is no longer a right of appeal against the decision to refuse to issue residency documentation.
This remains that case however, following the case of UK v. Banger C-89/17 there has been a referral to the European Court of Justice and the question the court has been asked to consider is this : ‘Is a rule of national law which precludes an appeal to a court or tribunal against the 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 Directive referred to is Council Directive 2004 (38/EC). It is estimated that it could take a year and a half for the European Court of Justice to pronounce on this referral. Other matters were referred from the same case. This includes the question of whether the UK Government’s position that the case of Surinder Singh does not extend to the non-Union unmarried partner of an EU citizen is lawful. We will keep you updated with these developments.