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Reference made to CJEU on rights of appeal for extended family members
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Anthony Metzer QC led Sanaz Saifolahi, on behalf of the Respondent, before the President of the Upper Tribunal, Mr Justice McCloskey, on the application of the Surinder Singh rationale to the unmarried partner of a British National. There are currently no reported cases on this issue.
The Respondent is in a longstanding durable relationship with a British National. The couple had previously lived in The Netherlands before returning to the UK.
The Respondent then applied for a Residence Card relying on Surinder Singh. The Secretary of State for the Home Department (now the Appellant) refused to grant a Residence Card, on the basis that Regulation 9 of the Immigration (EEA) Regulations 2006 did not apply as the couple were not married when they were living in The Netherlands.
The Respondent initially succeeded in her appeal before the First Tier Tribunal but the SSHD successfully applied for permission to appeal to the Upper Tribunal.
Before the President, it was argued that:
- the rationale in Surinder Singh should apply equally to married and unmarried couples
- primary European law prohibits discrimination on the grounds of nationality and sexual orientation
- Regulation 9 of the EEA Regulations is therefore incompatible with primary European law and has not adopted the rationale in Surinder Singh.
The Secretary of State then raised an issue of jurisdiction following the case of Sala (EFMS: Rights of Appeal)  UKUT 411. Further written submissions were filed and served by both sides addressing Sala and the jurisdiction of the Tribunal.
It was successfully argued on behalf of the Respondent that the Order for Reference to the CJEU needed to be made to determine the issue of jurisdiction.
By Order dated 20th January 2017, the President made an Order for Reference to the Court of Justice of the European Union. One of the Reference questions is:
Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive?
This Reference question is directly relevant to the issue of the jurisdiction of the Tribunal following the case of Sala and will be relevant to extended family members who currently have no right of appeal to the Tribunal. The remaining Reference questions relate to the application of Surinder Singh to the unmarried partner of a British National. The case remains unreported at present. Anthony Metzer QC and Sanaz Saifolahi of Goldsmith Chambers act for the Respondent.
Contributed by Anthony Metzer QC and Sanaz Saifolahi of Goldsmith Chambers