Court of Justice of the European Union rules that Surinder Singh applies to extended family members

In a recent judgement in the case of C‑89/17 Banger v UK, the Court of Justice of the European Union held that the rights of unmarried partners of British citizens who return to the UK having exercised Treaty rights in another EU country are also covered by Article 21(1) TFEU.

Rights of Extended Family Members

The Court ruled that Surinder Singh principles must be interpreted as requiring the Member State of which a Union citizen is a national to facilitate the provision of a residence authorisation to the unregistered partner, a third-country national with whom that Union citizen has a durable relationship that is duly attested, where the Union citizen, having exercised his right of freedom of movement to work in a second Member State, […] returns with his partner to the Member State of which he is a national in order to reside there.

In other words, the Court held that under EU law the rights of extended family member of British citizens who have returned to the UK after exercising Treaty rights in the EU member states, have to be interpreted so as to facilitate free movement and therefore falls within the scope of Article 21(1) TFEU.

Another important aspect of the judgement in Banger is that it implies that the UK’s decision to remove appeal rights from extended family members is unlawful.

The Court ruled:

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.

Currently, extended family members do not have a right of appeal against Home Office decisions and therefore the only available remedy open to them is judicial review. The decision in Banger implies that this does not provide extended family member with a sufficient redress procedure. It therefore seems likely that appeal rights of extended family member will be reinstated following the judgement in Banger.

Reinstatement of Appeal Rights

In light of this, it may be the case that if you were previously denied a right of appeal as an extended family member of an EEA national, your appeal rights could be reinstated.

Should you have any further questions, or think any of the above may apply to your matter, please do not hesitate to contact us directly:

Oksana Demyanchuk

Email: oksana@sterling-law.co.uk

Tel. 020 7822 8535

 

Michael Carter

Email: michael@sterling-law.co.uk

Tel. 020 7822 8535

 

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