The right of appeal against refusal of a residence card: where are we up to?

27 February 2018 by Jonathan Metzer

One way for an immigrant to gain the right to be in the UK is by making an application under the Immigration Rules. But these applications are relatively expensive and the requirements have become increasingly stringent (e.g. in a case of a partner, the normal minimum income requirement of £18,600 p/a, which was upheld by the Supreme Court).

For as long as the UK remains in the EU, there is also an alternative option – an application under the Immigration (European Economic Area) Regulations. This offers a route for the family of an EU citizen to apply for a UK residence card.

But the law in this area concerning the right of appeal has been on the move. This article will aim to give an update of where we are up to and what is still yet to be decided.

UPDATED following the Advocate General’s opinion in Banger – see end of this post.

Introducing the Immigration (EEA) Regulations

These Regulations transpose into domestic law the rights of admission and residency in the UK for EEA citizens and their family members. They provide for rights of appeal against decisions made under the Regulations. These appeals are heard by the First-tier Tribunal, like other immigration appeals. Unlike in judicial review, the tribunal will regularly consider oral evidence and make extensive findings of fact.

Which Regulations?

But there is not just one set of Regulations. There are old and new ones.

The old regulations are the Immigration (EEA) Regulations 2006 and the new ones are the Immigration (EEA) Regulations 2016. The 2016 Regulations provide that the 2006 Regulations have been revoked (see Schedule 4 (1)). But this is not the end of the story. Schedule 4 (2) (3) of the 2016 Regulations provides that that 2006 Regulations continue to apply to a case where a person had a right to an appeal or a pending appeal on 31st January 2017. For the time being, then, both sets of Regulations remain live.

Who has the right of appeal?

The Regulations draw a distinction between ‘family members’ and ‘extended family members’. Spouses, direct descendants (including stepchildren) who are dependent or under 21, and dependents in the direct ascending line count as ‘family members’. But non-married partners and other relatives (e.g. grown-up children) are ‘extended family members’.

A refusal decision against a ‘family member’ confers a right of appeal. But the question of whether an ‘extended family member’ has a right of appeal is more complicated.

Let’s start with the 2006 Regulations. For many years it seemed clear that an ‘extended family member’ enjoyed the usual appeal rights. However, on 19th August 2016 the Upper Tribunal handed down the decision in Sala v Secretary of State for the Home Department [2016] UKUT 411.

In that case, although the representative of the Secretary of State agreed that an ‘extended family member’ of an EEA national (in this case, a non-married partner) had a right of appeal against the refusal of a residence card under the 2006 Regulations, the tribunal preferred the view of an amicus curiae (a non-party who can be asked to assist the court in its decision). It held that the proper interpretation of the 2006 Regulations meant that the refusal of a residence card to an ‘extended family member’ was not a decision under the Regulations. As such, there was no right of appeal. This meant that judicial review was the only appropriate way to challenge the decision.

Enter the CJEU

But this was not the end of the story. In Banger (Unmarried Partner of British National) [2017] UKUT 125 (IAC), the Upper Tribunal referred four questions of EU law to the Court of Justice of the European Union. The fourth question concerned whether the new interpretation of the 2006 Regulations, as approved in Sala, was compatible with the EU Citizens Directive. It was as follows:

(4) 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?

The CJEU heard this case in January 2018 and its decision is expected later this year.

The other questions, beyond the scope of this post, concerned the ‘Surinder Singh principle’. Put broadly, this principle requires that if a British citizen was exercising Treaty rights and living with their spouse outside the UK, and the British citizen returns to the UK, the spouse gets the right of residence in the UK. Another major aspect of Banger concerns whether this principle should be extended to include non-married partners too.

Back to the UK courts

So, the right of appeal issue went to Europe. But then on 9th November 2017 the tectonic plates moved again. In Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755, the Court of Appeal held that Sala had been wrongly decided. It made it clear that a decision to refuse a residence card to an ‘extended family member’ under the 2006 Regulations was a decision which could be appealed in the ordinary way to the First-tier Tribunal.

But if you think this wraps everything up in a neat little package then I am afraid you have to keep reading. Now we need to bring in the 2016 Regulations.

The 2016 Regulations

The issue of whether an ‘extended family member’  has a right of appeal under the 2006 Regulations concerned the correct interpretation of a regulation which did not give an express answer one way or the other.

But the 2016 Regulations are much clearer and much more stringent. Regulation 2 provides as follows:

“EEA decision”

… does not include a decision to refuse to issue a document under regulation 12(4) (issue of an EEA family permit to an extended family member), 17(5) (issue of a registration certificate to an extended family member) or 18(4) (issue of a residence card to an extended family member) …

So, the 2016 Regulations expressly state that the refusal of a residence card to an ‘extended family member’ is not an ‘EEA decision’. This means that there is no right of appeal to the First-tier Tribunal.

As a result, the reasoning in Khan is very unlikely to apply to cases under the new Regulations. This would mean that the effect of Khan will ebb away as the 2016 Regulations slowly but surely take over.

Spotlight on the CJEU

This gives the fourth question in Banger renewed importance. If the CJEU holds that the availability of judicial review against the refusal of a residence card to an ‘extended family member’ is sufficient to meet the requirements of the Citizens Directive, then the 2016 Regulations will stand. However, it is possible that the CJEU will rule the other way and decide that a full appeal is needed to give proper effect to the Directive.

On 14th February 2018, the Supreme Court decided the case of SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9. In this case, the Supreme Court referred another set of questions to the CJEU, concerning whether  a child in the permanent guardianship of an EU citizen under the Islamic arrangement of kefalah counted as an ‘family member’ / ‘extended family member’.

This case concerned the 2006 Regulations, so it was clear that even if the CJEU found that such a child was not a ‘family member’ but was an ‘extended family member’, there was still a right of appeal against the refusal decision. This is in accordance with the decision in Khan, which was affirmed as being correct.

But the court also noted the importance of Banger. Lady Hale put it like this:

40. For completeness, it should be recorded that on 20 February 2017, in
Secretary of State for the Home Department v Banger ([2017] UKUT 125,
unreported), a differently constituted Upper Tribunal referred a number of questions concerning the claim of the unmarried partner of a British national to the Court of Justice of the European Union. Among those questions, in the light of Sala, was this:

“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 [Citizens] Directive?”

Despite the decision in Khan, that question is not moot, as the 2006 Regulations
have since been replaced by the Immigration (European Economic Area)
Regulations 2016 (SI 2016/1052). These largely reproduce the 2006 Regulations, as
amended, but decisions to refuse to issue an EEA family permit, a registration
certificate or a residence card to an extended family member have been expressly
excluded from the definition of an “EEA decision” in regulation 2(1).

41. We understand that the oral hearing in Banger took place in January 2018.
The issue is whether the procedural safeguards laid down in articles 15, 20 and 21
of the Directive require a full merits appeal to a court or tribunal or whether they
can be satisfied by the UK’s procedure for judicial review of administrative action:
is that an effective remedy for this purpose? Given the conclusion we have reached
in this case, it would be inappropriate for us to comment further on this issue. We
shall await with interest the outcome of the reference in Banger.

(Provisional) Conclusion

So, the state of play is as follows:

• If an ‘extended family member’ was refused a residence card and had a right of appeal or a pending appeal on 31st January 2017, then they still have the right of appeal to the First-tier Tribunal under the 2006 Regulations.
• But if the refusal postdates this, then there is currently no right of appeal, as the case falls under the 2016 Regulations. Only judicial review is available. This will remain the case unless the CJEU determines that this represents a breach by the UK of its EU law obligations. However, if bringing a judicial review against such a decision, it it suggested that it would make sense to bring this (at least in part) as a challenge to the lawfulness of the 2016 Regulations and/or to contend that the Regulations must be read so as to allow a right of appeal in such circumstances, and invite the court to stay the matter behind the decision in Banger.

The Advocate General’s opinion in Banger will be the first sign of which way the court might lean. It was first expected to come out in March, but it has been delayed. So now we play the waiting game.

UPDATE: The Advocate General’s Opinion in Banger was published on 10th April 2018.

In relation to the issue of whether a right of a right to a full merits appeal against the refusal of a residence card is required under EU law, Advocate General Bobek stated that “I do not think that the Court should answer the question as it is posed” (para 77).

He reasoned that deciding this question was more properly a task for a national court (which is more conversant with the nature of judicial review). He also considered that the issue was too abstract to be properly the subject of a preliminary reference (which is intended to resolve a specific dispute in the main proceedings).

However, he then stated that

what this Court could provide and in the spirit of cooperation perhaps should provide, in order to assist the national court with regard to the issues raised by the fourth question, is clarification on the obligations and requirements under EU law with regard to an effective remedy in the context of an application by analogy of Article 3(2) of Directive 2004/38. (para 81)

The AG set about providing this assistance at paras 83-114 of the opinion.

He first explained that there is an entitlement to procedural guarantees to ensure that there is effective judicial protection of EU law rights. This requires that there must be a remedy against any decisions of national authorities refusing the rights granted by EU law. The bone of contention is the scope and intensity of the judicial scrutiny that is required.

He suggested that this issue must be determined according to the EU law principles of equivalence and effectiveness.

The principle of equivalence requires that the rules concerning actions with regard to infringements of EU law apply no less favourably to parties compared to the rules governing comparable domestic actions. He stated that

It … remains for the referring court to ascertain whether the claims against a refusal of residence cards for extended family members … do not receive a less favourable treatment than other similar claims under domestic law. (para 98)

With regard to the principle of effectiveness, the AG considered that the scope and intensity of review necessary to ensure effective judicial protection would depend on circumstances and therefore must be examined according to the specific context. He noted that the whilst the case law of the European Court of Human Rights under Article 6 ECHR (the right to a fair trial) included several decisions where judicial review had been found to be sufficient,

the ECtHR has found violations of Article 6(1) ECHR where the reviewing court was precluded from determining the central issue in dispute or where the domestic courts considered themselves bound by the prior findings of administrative bodies which were decisive for the outcome of the cases before them, without examining the issues independently. (para 106)

In the context of the issue of a refusal of a residence card, the AG considered that

national courts must be able to review all the procedural aspects as well as the material elements of the decision, including its factual basis. (para 109)

He summed up this guidance as follows:

The elements that must be available for judicial scrutiny flowing from Article 3(2) of the directive are, beyond the requirement of facilitation, essentially threefold: that the decision to be reviewed must be the result of an extensive examination (i), which then logically must be reflected in the reasons given for potentially justifying any denial of entry or residence (ii). Furthermore, that examination must be done on the basis of personal circumstances, which includes the relationship with the Union citizen and the situation of dependence (iii).

All those elements must be reviewable by a court or tribunal. A national court must have the competence to proceed, if it deems necessary, to the verification of the key relevant facts serving as the basis of the administrative decision. It must be possible to gauge whether the reasons adduced by the administration duly correspond to the criteria established by national law, within the limits imposed by Directive 2004/38. It must also be possible to ascertain the sufficiency and adequacy of the justification. In particular, it must be possible to assess whether the specific personal circumstances relevant to the pertinent criteria have been duly examined.

Conversely, as long as all those elements can be reviewed and any administrative decision breaching those requirements can be annulled, an effective remedy under Article 47 of the Charter does not require, in my opinion, the reviewing court or tribunal to have the competence to examine new evidence. Nor does it require it to establish facts not presented before the administrative authority, or to have the power to immediately substitute the administrative decision with its own judgment. (paras 111-3)

The AG concluded by suggesting that the court give the following answer to this issue:

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.

So, the AG has suggested that the domestic courts should decide the matter, but should do so in line with guidance on the relevant EU law principles.

The AG’s opinion, while important, is not actually binding. We await with interest the judgment of the court, which is likely to come in a few months’ time. For now, watch this space.

Jonathan Metzer is a barrister at One Crown Office Row. Although he is an ‘extended family member’ of lead counsel to the appellant in Banger, this post was written without his involvement.