Government set to introduce right of appeal right for extended family members

Amidst all the deal or no-deal Brexit news, you may have missed the Home Office saying that they plan to introduce appeal rights for extended family members of EEA nationals who have been refused a residence card.

top London immigration solicitors have welcomed the announcement. The government says that legislation to amend the Immigration (European Economic Area) Regulations 2016 will be brought in as soon as practicable.

The best London immigration solicitors anticipate that it may be some time before new legislation is enacted given the current focus of politicians. Nonetheless, it is very welcome news for EEA nationals and their extended family members.

This planned change in the law comes about because of a test case that the court was going to resolve in 2019. The case concerned an application for judicial review of the regulations that do not allow an appeal against the decision to refuse an EEA national’s extended family member a residence card. The central issue in the case was whether the UK regulations that do not provide an appeal route for the extended family of EEA nationals are compliant with EU law. The indication of a change in legislation gives a steer on what the government legal advisors thought the outcome of the case might be.

OTS Solicitors are Legal 500 London immigration solicitors with extensive experience in assisting EEA citizens and their partners and extended family members with their Immigration status in the UK and residence card applications to secure entry to the UK.

OTS Solicitors have substantial experience in successfully applying for residence cards, permanent residence applications, settled status and judicial review cases. To speak to one of our experienced London immigration solicitors, please call us on 0203 959 9123.

top London immigration solicitors advise that the rights of extended family members to join EEA citizens are set out in Directive 2004/38.

Extended family members do not have the same automatic rights of “family members” of EEA citizens. The class of family members is defined as:

• The spouse of an EEA national; and

• The civil partner of an EEA national; and

• The dependent child of an EEA national; and

• The dependant parent of an EEA national.

A person who falls within the category of family member of an EEA citizen has the right to enter and reside in the UK.

In contrast, if you are an extended family member, all the Home Office is under a duty to do is to:

• Facilitate entry and residence for extended family members; and

• Undertake an extensive examination of the personal circumstances and to justify any denial of entry or residence to extended family members of EEA citizens; and

• Provide access to judicial and, where appropriate, administrative redress procedures to appeal against or seek review of any decision to refuse entry; and

• Provide redress procedures that allow for an examination of the legality of the decision to refuse a residence card.

The best London immigration solicitors say that the vast majority of cases coming before tribunals and courts the extended family member was the partner (not spouse or civil partner) of an EEA citizen. To be classified as a partner you have to be able to establish a “durable relationship” with the EEA national.

The government decision to bring in new legislation is, in the opinion of the best Immigration law solicitors, a result of the case of Banger. The case involved an application by an extended family member where permission to enter the UK was refused. The key point was whether there had been a thorough and extensive assessment of the case prior to refusal of the application. The family thought not but under UK Immigration rules; there is no right to appeal against the decision to refuse entry to an extended family member.

The case of Banger went to the European court of justice. The court said that the UK must have a redress procedure to enable a UK court to decide whether the refusal to grant entry to the extended family member of an EEA national was based on a “sufficiently solid and factual basis”.

The top London immigration solicitors argued that the UK judicial review process was not an appeal route or a “redress procedure”. That is because, in a judicial review application, all the court can do is comment on the legality of a government decision. In an appeal, a court can overturn the decision of a lower tribunal and substitute its own decision. Therefore, the best London immigration solicitors argued that judicial review was not enough “redress”.

With news of the government announcement there is at last light at the end of the tunnel for extended family members of EEA nationals who are refused a residence card. Top Immigration solicitors believe that if there is a clear appeal route for extended family members of EEA nationals to pursue if they are refused a residence card, it will make Home Office caseworkers look more thoroughly at the initial application. That is good news for EEA nationals and their extended family.

The top London immigration solicitors say, even if it seems likely that there will be an appeal route to challenge a decision to refuse a residence card to an extended family member, it is vital that the original application addresses the Home Office criteria for the entry of extended family members of EEA nationals. Therefore, it is important to take advice before submitting the application to maximise your prospects of success, without having to go down the judicial review or appeal route.

OTS Solicitors are specialist London immigration solicitors who are recommended in the legal directory, Legal 500, for their expertise in Immigration law.

OTS Solicitors advise on all aspects of individual and business immigration. Our London immigration solicitors have substantial experience in visa applications, settled status applications, residence cards, Indefinite Leave to Remain and all types of Immigration appeals and judicial review applications.