The right of appeal against refusal of a residence card: the latest developments
24 October 2018
As discussed previously on the Blog, the rights of the family members of EEA nationals to reside in the UK is currently in a state of flux. One important issue concerns the appeal rights of an “extended family member” of an EEA national.
At the moment, if a “family member” of an EEA national resident in the UK, that is, a spouse, direct descendant (including a stepchild) who is dependent or under 21, or a dependent in the direct ascending line, applies for a residence card under the Immigration (European Economic Area) Regulations 2016 and is refused by the Home Office, they have a right of appeal to the First-tier Tribunal in the normal way.
However, if an “extended family member”, that is, a non-married partner or other dependent relative (e.g. grown-up child) of the EEA national applies for a residence card, but is refused, regulation 2 of the Immigration (European Economic Area) Regulations 2016 operates to preclude a right of appeal to the First-tier Tribunal. Therefore, only judicial review is available to challenge such a decision.
In my last article, we saw that one such “extended family member”, Ms Rozanne Banger (I am reliably informed that her surname is pronounced “Banjer” with a soft “g”), fought a case at the Upper Tribunal in part concerning the issue of whether the denial of a right of appeal to a person in her position was compatible with EU law, specifically Article 3(2) of Directive 2004/38 (known as the “Citizens Directive”). The Upper Tribunal decided that it needed to ask the Court of Justice of the European Union to clarify the matter.
In accordance with the non-binding advice given by the Advocate General, the CJEU did not answer the question directly.
Rather, the CJEU took the view that the matter was something for the domestic court to decide, in light of guidance as to the requirements of the Citizens Directive which it would provide.
The Court stated that
Member States must, in accordance with the second subparagraph of Article 3(2) of Directive 2004/38, make it possible for persons envisaged in the first subparagraph of Article 3(2) of that directive to obtain a decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons. 
those persons must have available to them an effective judicial remedy against a decision, under that provision, permitting a review of the legality of that decision as regards matters of both fact and law in the light of EU law. 
In particular, the following was required:
the third-country nationals envisaged in that provision 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. Those safeguards include the obligation for the competent national authorities to undertake an extensive examination of the applicant’s personal circumstances and to justify any denial of entry or residence. 
A big question for the domestic court will be whether or not regulation 2 of the 2016 Regulations is compatible with this authoritative interpretation of the Citizens Directive.
Claimants are likely to contend that only a full merits appeal to the First-tier Tribunal can provide the “extensive examination of the applicant’s personal circumstances” so as “to ascertain whether the refusal decision is based on a sufficiently solid factual basis”.
In contrast, the Secretary of State may well take the opposing view and argue that judicial review is enough to meet the requirements identified by the Court of Justice.
The challenges to regulation 2 of the 2016 Regulations on this basis have already started, and it appears that this month the Secretary of State has accepted that the claim is at least arguable.
With the latest stats now showing that 50% of appeals to the First-tier Tribunal are successful, a right of appeal can be a powerful remedy to a Home Office refusal. We must await with interest the answer to the substantive question, which is likely to have important consequences for a great many family members of EEA nationals resident in the UK.
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.