The Secretary of State has confirmed that he intends to introduce appeal rights for extended family members of EEA nationals who have been refused a residence card. The government will lay legislation amending the Immigration (European Economic Area) Regulations 2016 “as soon as reasonably practicable”.

This important statement arises out of a test case that had been due to be heard in May 2019. The Secretary of State has invited the claimant to withdraw his judicial review (CO/2339/2018), in which we challenged the legality of the 2016 Regulations on the ground that it unlawfully prevents an appeal from an extended family member who has been refused a residence card under EU law.

Over 18 months after he was refused a residence card, the claimant in the test case has his first indication that he will be able to appeal that refusal (in the event the Secretary of State continues to maintain the decision) to the First-tier Tribunal. My client is an Albanian national whose partner is Polish. At the time of his application for a residence card in December 2016, the couple had been in a relationship for some three and a half years and cohabiting for just over three years. The application was refused as it was concluded that the claimant had failed to provide sufficient evidence that he had a durable relationship with his partner. The refusal was under Regulation 8(5) of the 2016 Regulations.

The problem for the claimant was that, at the time of the Secretary of State’s decision, he was prevented from appealing the Secretary of State’s decision by Regulation 36 of the 2016 Regulations. He therefore had no alternative but to apply for judicial review. The judicial review claim was filed on 10 August 2017. Subsequently, the claim was stayed pending the judgment in Khan v SSHD [2017] EWCA Civ 1755. That judgment was delivered in November 2017 but it did not provide the whole answer to the issues between the parties in this case since the ruling in that case related to appeal rights for extended family members under the old Immigration (European Economic Area) Regulations 2006.

The proceedings therefore continued. Whilst it was pending, the Advocate General Bobek delivered his helpful Opinion in Case C-89/17 SSHD v Banger (Directive 2004/38/EC) expressed thus:

…it is my view that the answer to the fourth preliminary question should be that Article 3(2) of Directive 2004/38 must be interpreted as requiring effective judicial review of decisions denying entry or residence to extended family members, in line with Article 47 of the Charter. It is for the competent national court to ascertain whether the system of judicial review available under national law complies with that requirement.

Note that the term ‘judicial review’ was not used here by AG Bobek to mean judicial review proceedings. Rather, it was used in a much more literal sense, to indicate the judicial examination of a relevant decision.

Armed with weighty support for his contentions, the claimant persevered with his application. Although the Secretary of State has only today decided to concede the issue of the 2016 Regulations unlawfully depriving extended family members of the right of appeal, the game over point – so far as this author is concerned – came on 12 July 2018. That was the date that the Court of Justice of the European Union’s gave its ruling in the Banger case. On the issue of whether it is compatible with Directive 2004/38/EC to operate a rule of national law which precludes an appeal to a court or tribunal against a decision refusing to issue a residence card to a person claiming to be an extended family member, the CJEU held that a national court must be able to evaluate whether the refusal decision rests on “a sufficiently solid factual basis” and whether the decision-maker complied with the requisite procedural safeguards governing any denial of entry or residence.

It is believed that in those cases that are stayed pending the test case, representatives should now be able to request that the Secretary of State’s decisions in those cases similarly be withdrawn.

Counsel in the case is Grace Brown instructed by Sharif Khan (sharifk@oliverandhasani.co.uk) of Oliver Hasani Solicitors.