The Immigration (European Economic Area) Regulations 2016 expressly exclude, from the definition of an EEA decision in Reg 2(1), decisions to refuse to issue residence documentation to an Extended Family Member (EFM) of an EEA national, thus removing appeal rights from EFMs and leaving Judicial Review as the only way to challenge a refusal decision. This change was made following the decision in Sala (EFMs: Right of Appeal: Albania) [2016] UKUT 411 (IAC) (19 August 2016) which was subsequently overturned in Khan v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1755 (09 November 2017).
In 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) the CJEU has now clarified what redress procedures are required, in order for an EFM to challenge a decision to refuse them residence documentation. The Court found that:
Article 3(2) of Directive 2004/38 must be interpreted as meaning that 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.
In my opinion, in the light of this judgment, Judicial Review is not an adequate remedy and the Regulations will need to be amended restoring full appeal rights to EFMs .
On the substantive issue in Banger the CJEU found, relying on Article 21(1) TFEU, that Surinder Singh principles applied to unmarried partners and that decisions to refuse residence documentation to such an applicant must be based upon an extensive examination of the applicant’s personal circumstances and justified with reasons.