Upper Tribunal (Immigration and asylum chamber), 2019-04-10, [2019] UKUT 194 (IAC) (Banger (EEA: EFM - Right of Appeal))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Rimington |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 10 April 2019 |
| Published date | 20 June 2019 |
| Status | Reported |
| Subject Matter | EEA: EFM - Right of Appeal |
| Hearing Date | 20 March 2019 |
| Appeal Number | [2019] UKUT 194 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Banger (EEA: EFM - Right of Appeal) [2019] UKUT 00194(IAC)
THE IMMIGRATION ACTS
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Heard at Field House 20th March 2019 |
Decision promulgated on: |
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Before
THE PRESIDENT, THE HON. MR JUSTICE LANE
UPPER TRIBUNAL JUDGE RIMINGTON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
ROZANNE BANGER
Respondent
Representation
For the Appellant: Mr Eric Metcalfe, Counsel instructed by the Treasury Solicitor
For the Respondent: Mr A Metzer QC and Ms S Saifolahi Counsel acting pro bono
The Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regs’) specifically excluded a right of appeal for Extended Family Members (‘EFMs’). The 2016 Regs have been amended pursuant to the Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019, with effect from 29th March 2019, so as to provide EFMs with a right of appeal. This does not have retrospective effect.
It is open to those EFMs against whom a decision was made under the 2016 Regs but before 29 March 2019 to request a new decision from the Secretary of State in order to generate a right of appeal.
Alternatively the EFM may invoke the doctrine of direct effect under EU law in relation to a decision which falls into the lacuna between the 2006 regulations and the amended 2016 regulations, and apply under rule 20 of the Tribunal Procedure (First-tier Tribunal) (IAC) Rules 2014 for an extension of time to provide a notice of appeal to that Tribunal.
DECISION
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While the application for permission to appeal was made by the Secretary of State, we shall refer to the parties as they were described before the First-Tier Tribunal.
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The full background to this appeal is set out in the reported decision Banger (Unmarried Partner of British National) [2017] UKUT 00125(IAC) and will not be repeated here save for context.
The history
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The essential facts were not in dispute. Simply put, the appellant, a South African national, appealed against the refusal of a residence card under the Immigration (European Economic Area) Regulations 2006. Her partner, Mr Rado, is a British national with whom she formerly resided in South Africa, from January 2008. In May 2010, both migrated to The Netherlands, where her partner worked. They lived together in The Netherlands for five years and the Appellant was granted a Dutch residence card in her capacity of an extended family member (EFM) of an EU citizen. Three years later the Appellant and her partner decided to move together to the United Kingdom. Prior to moving, the Appellant applied to the Secretary of State for the Home Department (the “Secretary of State”) for a residence card. On 26 September 2013, that application was refused in the following terms:
“Your application has been considered under regulation 9 which states that to qualify as the family member of a British citizen you must show that you are either the spouse or civil partner of the British citizen. An unmarried partner is not recognised as the family member of a British Citizen. You do not have a basis of stay in the United Kingdom under the Immigration (European Economic Area) Regulations 2006.”
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The Appellant appealed to the First-tier Tribunal (“FtT”), which allowed her appeal. The Secretary of State was granted permission to appeal. The grant of permission to appeal is couched in the following terms:
The Secretary of State for the Home Department contends that, in holding that the Surinder Singh principles apply to unmarried partners, the Judge erred in law. The Secretary of State for the Home Department further contends that, in relying on an unreported decision of the Upper Tribunal (Cain ……. Appeal Number IA/40868/2013), which apparently held that the Surinder Singh principle did apply to persons in a durable relationship), the Judge erred in law.”
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The key question of law raised was whether the Appellant, being the non-EU partner of a British citizen/EEA national who had exercised his EU Treaty rights in another EU state but who was now returning to his member State of origin, enjoyed the benefit of the ‘Surinder Singh’ principle, whereby the spouse of such an EU national is entitled to enter and reside in that national’s State of origin. The Secretary of State submitted that the Surinder Singh principle did not apply to unmarried partners or extended family members of EU citizens but was confined to spouses.
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In 2017 the Upper Tribunal stayed the proceedings and referred the following questions to the CJEU for a preliminary ruling under Article 267 TFEU :
(1) Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality?
(2) Alternatively, is there a requirement to issue or, alternatively, facilitate the provision of such residence authorisation by virtue of European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”)?
(3) Where a decision to refuse a residence authorisation is not founded on an extensive examination of the personal circumstances of the Applicant and is not justified by adequate or sufficient reasons is such decision unlawful as being in breach of Article 3(2) of the Citizens Directive?
(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?
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On 12th July 2018 the CJEU gave a ruling on the interpretation of the Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States: Secretary of State for the Home Department v Banger (Citizenship of the European Union - Right of Union citizens to move and reside freely within the territory of the European Union - Judgment) [2018] EUECJ C-89/17 (12 July 2018).
First and Second Questions
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The first and second questions were answered by the CJEU at paragraphs 18 to 35 of the judgment.
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It was observed that the Directive could not confer a derived right of residence on third country nationals who were family members in the Member State of which that citizen was a national. The Court acknowledged, however, in certain cases, third country nationals as family members of a Union citizen, who were not eligible on the basis of the Directive for a derived right of residence, could be accorded such a right on the basis of Article 21(1) of the TFEU (see Coman and others [2018] EUECJ C-673/16 (5 June 2018)). If no such right was granted, a Union citizen would be discouraged from leaving the Member State of which he was a national to exercise his right of residence in another Member State.
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Ms Banger, as a partner in a durable relationship and not a spouse or civil partner, was not considered to be a ‘family member’ as defined by Article 2(2) of the Directive. However, Article 3(2) (b) of the Directive related to partners in a durable relationship and although Article 3(2) of the Directive did not require the Member States to accord a right of entry and residence to third country nationals who were partners in a durable relationship (in contrast with family members), it nevertheless imposed an obligation on those Member States to confer certain advantages on applications submitted by those third country nationals.
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In conclusion at paragraphs 33- 35 the CJEU stated:-
‘33 In a situation such as that in question in the main proceedings, Directive 2004/38, including point (b) of the first subparagraph of Article 3(2) thereof, must be applied by analogy as regards the conditions in which the entry and residence of third-country nationals envisaged by that directive must be facilitated.
34 That conclusion cannot be called in question by the United Kingdom Government’s argument according to which, in paragraph 63 of the judgment of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135), the grant of a derived right of residence in the Member State of origin was confined solely to third-country nationals who are a ‘family member’ as defined in Article 2(2) of Directive 2004/38. As the Advocate General observed in point 35 of his Opinion, although in that judgment the Court held that a third-country national who does not have the status of a family member may not enjoy, in the host Member State, a derived right of residence under Directive 2004/38 or Article 21(1) TFEU, that judgment does not, however, exclude the obligation for that Member State to facilitate the entry and residence of such a national in accordance with Article 3(2) of that directive.
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