EU law – Appeal rights for “extended family members” Under New 2019 Regulations

With the oncoming Brexit as disastrous and disruptive as it may as appear, the government has published the Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019. One of the significant changes to the Regulations is the appeal rights given to non-EU extended family members of EU citizens. Additionally, the Regulations also implement last summer’s ruling allowing extended family members to avail of the Surinder Singh immigration route.

Appeal Rights

Extended family members have had a rollercoaster ride over the past few years regarding their appeal rights. The first major blow came from the Upper Tribunal’s ruling in the case of Sala in 2016 finding that no appeal right existed for extended family members. Much disruption came about with pending appeal being struck out from the courts and applicants being left in a state of panic.

The Court of Appeal then reversed the decision about a year later with the result only benefiting applicants who had applied under the pre 2016 Regulations. In the interim the 2016 Regulations came into existence explicitly removing the right of appeal to extended family members.

The Home Office then conceded that the 2016 Regulations should also be changed to allow appeal rights, in response to a judicial review challenge. That is carried through in this new statutory instrument:

Regulation 3 concerns the rights of appeal for extended family members of EEA nationals. It amends the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). It does this by making provision for a right of appeal against a decision to refuse to issue an EEA family permit (under regulation 12(4)), a registration certificate (under regulation 17(5)) or a residence card (under regulation 18(4)) to an extended family member of an EEA national.

Explanatory memorandum, paragraph 7.5

The appeal rights change is expected to come into force around the 28 March 2019.

Implementing Banger

The regulations also implement the Court of Justice of the European Union ruling in C‑89/17 Banger v UK, also as of 28 March. For background on this case, see Court of Justice finds Surinder Singh applies to extended family members.

This is mostly done by changing “family members” to “family members and extended family members” in various bits of Regulations 7 and 9 of the EEA Regulations 2016.

Zambrano Carers

We learned from the statement of changes to the Immigration Rules HC1919 released on 7 March 2019 that non-EU citizens with a “derivative right to reside” in the UK (Zambrano carers etc) will now be able to apply for post-Brexit settled status. A technical change made to the EEA Regulations has been made to cater for this, with the explanatory notes saying that the new instrument:

provides scope for individuals with a ‘derivative right’ to reside in the UK under regulation 16 of the 2016 Regulations to be granted leave under the EU Settlement Scheme without losing their derivative right to reside. This is to ensure compliance with the draft Withdrawal Agreement with the European Union, which requires an individual’s EU law rights to run parallel to any scheme leave during the planned implementation period from exit to 31 December 2020.

This also comes into force on 28 March 2019.

Common Travel Area

Finally there is an amendment to the rules on the Common Travel Area. This is a passport-free zone between the United Kingdom and Republic of Ireland. Technically, though, only British and Irish citizens can benefit from it. There are legal restrictions on others entering the UK from Ireland, who can only enter for up to three months without the right to work.

Those restrictions are lifted for EU citizens with settled status:

This Article does not apply to any person who has leave or may be granted leave to enter or remain in the United Kingdom by virtue of Appendix EU to the immigration rules.

This provision comes into force on the date that the UK exits the European Union, whenever that might be.

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