The unmarried partner of a British citizen who returns to the UK having resided in another EU country does have rights under EU law, the Court of Justice of the European Union has today held in the case of C‑89/17 Banger v UK. The court also finds that if such a person is refused, he or she is entitled to a proper investigation of the factual basis of the case.

In other words, the Court of Justice extends the principle of the Surinder Singh judgment to extended family members. You can read our earlier post on the Surinder Singh route here: The Surinder Singh immigration route: how does it work?.

The judgment makes clear that there is no automatic right to a residence card for extended family members. They are entitled to facilitation of their entry and residence and to extensive examination of their personal circumstances and any refusal must be justified by reasons, all in accordance with the rights of extended family members in Article 3 of Directive 2004/38.

This decision means that UK has been wrongly refusing applications of this type for years and will have to formally amend the Immigration (European Economic Area) Regulations 2016 (SI 2016 No. 1052) in order to comply with EU law.

The judgment also implies that the UK’s decision to abolish full rights of appeal for extended family members in 2016 was incompatible with EU law. Instead of merits appeals, extended family members now have to rely on an application for judicial review as their only available remedy.

The court held that when an extended family member is refused a residence document, that person:

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.

It is hard to see that an application for judicial review really provides this type of remedy. The grounds of challenge are based on reviewing whether the decision under challenge was lawful, not whether it was “correct” in the opinion of the judge. Judicial review does not permit the judge hearing the case to make up his or her own mind about what the outcome should be, only whether the decision-maker made any legal errors in reaching the decision.

There is a line of authority suggesting that judicial review is an adequate remedy in EU law, though, so the the question of whether a formal right of appeal needs to be restored is not entirely straightforward.

What is straightforward is that the original tribunal decision in Sala which triggered the abolition of rights of appeal for extended family members has been held to be wrong in the Court of Appeal and the Supreme Court and now implied to be wrong by the Court of Justice. There was no need to abolish rights of appeal and on a policy and human level, the Home Office should just restore them. It is very hard indeed to see the justification for removing a relatively cheap and effective remedy and replacing it with a complex, expensive and flawed one.

It is standard when the Home Office wins a case for the regulations to be amended immediately, but when the Home Office loses a case for it to take many months for implementation to occur. The last case the UK lost, Lounes, which was on the issue of the rights of dual EU-UK nationals, was in December 2017 but will only be implemented in late July 2018.

Extended family members wishing to benefit from Surinder Singh will probably need to wait many months before the regulations are formally amended. But applications should not be refused in the meantime and if there is a pressing need an application could be made now.

Looking ahead, Surinder Singh families are not covered by the draft Brexit Withdrawal Agreement, but the UK government has said that they will be able to apply for the settled status scheme anyway.