September 10, 2019

Right of appeal against refusal of a residence card: the conclusion

The question of whether non-married partners and wider dependent relatives (e.g. grown-up children) of EEA nationals (known as ‘extended family members’) have a right of appeal against a decision by the Home Secretary to refuse them a residence card under the EEA Regulations has had a fraught recent history.

Now, as a result of the final decision of the Upper Tribunal in Banger (EEA: EFM – Right of Appeal) [2019] UKUT 194(IAC), full appeal rights have been restored to ‘extended family members’ whose applications are refused.

To give you the background in a nutshell, by Regulations promulgated in 2016 the Government took away this right of appeal (though it left it in place for spouses and direct descendents). Given that 50% of immigration appeals (across the board) are now successful, this deprived many individuals of a potentially very important right. For more detail on the background, see our previous articles here and here.

In its final decision, the Upper Tribunal noted that following the decision of the Court of Justice in this case, the Home Secretary had amended the 2016 Regulations to provide ‘extended family members’ with a right of appeal once again, by way of the Immigration (European Area Nationals) (EU Exit) Regulations 2019.

As such, future refusal decisions made under the 2016 Regulations will include a right of appeal in the normal way.

In addition, the Upper Tribunal stated that where a person has received a refusal decision made before this change (which states that there is no right of appeal), it is open to them to request a fresh decision from the Secretary of State in order to generate a right of appeal (para 38), or alternatively to invoke the doctrine of direct effect under EU law and apply under rule 20 of the Tribunal Procedure (First-tier Tribunal) Rules 2014 for an extension of time to provide a notice of appeal to that Tribunal (paras 39-43).

The result is that after a legal battle of several years, an ‘extended family member’ who is refused a residence card should always have a right of appeal to the First-tier Tribunal.

One final thing to note is that despite the fact that by the time of the final hearing the Home Secretary had accepted that the appellant should be granted a residence card, the Upper Tribunal decided to give a fully reasoned decision in light of the lengthy delay by the Home Office in resolving this case, which had led the appellant to suffer “ongoing uncertainty in connection with her immigration status” (para 29).

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