Following the resumed hearing on 20th March 2019, before the President of the Upper Tribunal, Mr Justice Lane and Upper Tribunal Judge Rimington, the final Decision in Banger has now been reported: Banger (EEA: EFM – Right of Appeal)  UKUT 00194(IAC). Ms Banger was represented pro bono by Anthony Metzer QC and Sanaz Saifolahi.
For the full factual background and chronology, please see our earlier post here.
In summary, following the CJEU Judgment delivered on 12th July 2018, the SSHD then sought to have the appeal disposed of summarily by consent. This course was strongly opposed on behalf of Ms Banger. Having stayed the proceedings following the Reference to the CJEU, the Upper Tribunal did not agree to the SSHD’s proposed course and went on to determine and conclude the appeal as advanced by Ms Banger’s representatives.
The CJEU had found in Ms Banger’s favour on all questions referred. The Judgment in relation to the two lead issues have now been transposed into UK law through the Immigration (European Economic Area National) (EU Exit) Regulations 2019 in which the Judgment was expressly referred to in the Explanatory Notes. These amendments to Regulation 9 now include EFMs. In addition, EFMs now (again) have a right of appeal to the Tribunal.
The Upper Tribunal Decision makes findings on some hugely important issues in relation to the appeal rights of EFMs. In particular, it focuses on those EFMs who have had decisions from the SSHD dated before 29th March 2019 and therefore do not fall under the ambit of the amendments made within the Immigration (European Economic Area National) (EU Exit) Regulations 2019.
In addressing the appeal rights issue, the headnote states:
“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.”
The Decision provides an exciting and positive way forward for those EFMs who have decisions made by the SSHD prior to 29th March 2019. Those EFMs can either request a new decision from the SSHD or can lodge an out of time appeal to the Tribunal.
We are pleased to conclude that after many years of fighting, Ms Banger was finally issued with her residence card and EFMs finally have their appeal rights reinstated.
Related practice areas: Immigration and Public Law