On 1 February 2017 the Immigration (European Economic Area) Regulations 2006 will be replaced by the Immigration (European Economic Area) Regulations 2016. As noted by Colin Yeo on the free movement blog many of the provisions of the 2016 regulations are “obviously and transparently in breach of EU law”.
One change, which I must confess was brought to my attention by a client, does not appear to have received much attention yet. From 1 February 2017 the right to appeal an adverse decision following a Surinder Singh application will be severely curtailed.
A Surinder Singh application is an application by the family member of a British citizen who is relying on EU law in order to enter the UK following residence in another EU Member State. The 2016 Regulations have introduced a whole host of additional requirements making it significantly more difficult to successfully utilise this route.
From 25 November 2016 (when certain provisions of the 2016 Regulations which amended the 2006 Regulations entered into force) an applicant has been required to show that their residence in the other EU Member State with their British partner was “genuine”. When assessing whether the residence is genuine the Home Office will take into account:
- whether the centre of the British citizen’s life has transferred to the other Member State;
- the length of the joint residence in the other Member State;
- the nature and quality of the accommodation in the other Member State, and whether it is the British citizen’s principal residence;
- the degree of the applicant and their British partner’s integration in the other Member State; and
- whether the applicant’s first lawful residence in the EU with their British partner was in the other Member State.
There is also a new requirement that prohibits the use of this route where the purpose is to circumvent UK immigration laws. Given the subjective nature of these requirements you could be forgiven for assuming that a right of appeal to an independent Tribunal would be all the more necessary.
However, regulation 36(6) states that family members of British citizens relying on the EEA Regulations may not appeal unless they produce either an EEA family permit or a qualifying EEA State residence card together with proof that the applicant is the family member of a British citizen and proof that the British citizen exercised treaty rights in another EEA state.
The reference to an EEA family permit in regulation 36(6)(a) makes very little sense. An EEA family permit is a document issued by a UK Entry Clearance Officer confirming that a person has the right to enter the UK under the EEA Regulations. As such, the need to appeal will, more often than not, arise following a failed application for such a document.
The reference is presumably designed to preserves a right of appeal for those who have been granted an EEA family permit valid for 6 months and have subsequently been refused a 5 year residence permit once in the UK. Such refusals are likely to be rare as if the Entry Clearance Office accepted the requirements were met when issuing the EEA family permit, it is unclear on what basis a subsequent application 6 months later could be refused.
A right of appeal also appears to have been preserved for those who have been issued an EEA residence permit by another Member State and whose application has been refused on the basis of a failure to satisfy the genuine residence requirement (i.e. where it is accepted that the applicant is the family member of a British citizen who exercised treaty rights in another Member State).
However for those who have never been issued with any documentation from the UK or any other Member State there will be no right of appeal. Similarly where it is not accepted the British citizen was exercising treaty rights there will be no right of appeal. For these people, the only remedy will be judicial review which is often prohibitively expensive.
Appeal rights were previously dealt with in regulation 26 of the 2006 Regulations, which contained no provision restricting the right of appeal against refusal of an application by a family member of a British citizen. The right to appeal was not dependant on possession of certain documents.
It is well established that EEA nationals and their family members do not need any documentation to prove their right to live and work in another Member State: the rights flow directly from the EU Treaties and are conferred automatically by operation of the law, rather than granted upon issuance of the document (see Case 48/75 Royer v Belgium  2 CMLR 619 at paragraphs 31 to 33; and Case C-408/03 Commission v Belgium  ECR I-2647 at paragraphs 62 to 63).
Article 25 of the Citizens’ Rights Directive (Directive 2004/38/EC) prohibits Member States from making possession of a residence card “a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.” Regulation 36(6) would appear to violate this prohibition as from 1 February 2017 the possession of a residence document will be a precondition to exercising a right to appeal to the Tribunal. It remains to be seen whether applicants will be deemed to have sufficient opportunity to have an adverse decision independently reviewed through judicial review.
Following the determination of the Upper Tribunal in Sala (EFMs: Right of Appeal)  UKUT 00411 (IAC) (previously covered on this blog here) it was no surprise that the Regulations were amended to clarify that there is no right of appeal against a decision not to grant a residence permit to a person claiming to be an Extended Family Member. However the extension of this restriction to family members of British citizens appears to have been slipped in without any forewarning. The Explanatory Memorandum accompanying the Regulation makes no reference to the change. It is yet another example of an unnecessary and unjustified restriction on access to justice.