Right Of Appeal for Extended family Members of EEA nationals
The Secretary of State has confirmed introduction of appeal rights for extended family members of EEA nationals who have been refused a residence card.
The Court of Justice of the European Union’s gave its ruling in the case of Banger v SSHD case which came on 12 July 2018.
The decision came following opinion of the Advocate General Bobek in Case C-89/17 SSHD v Banger (Directive 2004/38/EC):
Briefly it was stated:
…it is my view that the answer to the fourth preliminary question should be that 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.
In the above case the issue at hand was whether not providing a right of appeal whilst deciding to refuse to issue a residence card to a person claiming to be an extended family member is compatible with Directive 2004/38/EC. The CJEU held that a national court must be able to evaluate whether the refusal decision rests on “a sufficiently solid factual basis” and whether the decision-maker complied with the requisite procedural safeguards governing any denial of entry or residence. Domestic Judicial Review process of course is not a fact-finding process and therefore cannot be considered compatible with the above directive.
The SSHD has now reviewed his position and agreed to provide a right of appeal to extended family members of EEA nationals if the application for residence card is refused. The government will proceed with amending the Immigration (European Economic Area) Regulations 2016 “as soon as reasonably practicable”.
Following from the above any pending claims should also be settled in line with the current announcement.
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