The Secretary of State for the Home Department v Rozanne Banger

An unregistered third-country-national partner in a duly attested durable relationship with a Union citizen returning to the citizen’s Member State of nationality must have their application for residence facilitation considered under the Directive 2004/38/EC framework. The partner must also have an effective redress procedure capable of reviewing the factual and legal basis of a refusal.

The 2019 amendments to the Immigration (European Economic Area) Regulations 2016, which restored appeal rights for extended family members, were not retrospective. Persons affected by the intervening lacuna may seek a fresh decision or invoke the directly effective EU-law remedy and seek an extension of time to appeal.

The appellant, a South African national, was the unmarried partner of a British national who had worked in the Netherlands. After the couple returned to the United Kingdom, the Secretary of State refused her application for a residence card under the Immigration (European Economic Area) Regulations 2006.

The First-tier Tribunal allowed her appeal. The Upper Tribunal set that decision aside and referred questions to the CJEU, including whether the Surinder Singh principle extended to an unmarried durable partner and whether an extended family member required an effective appeal remedy.

The CJEU ruled in Secretary of State for the Home Department v Banger [2018] EUECJ C-89/17 that the residence of such a partner must be facilitated and that a redress procedure was required. On the resumed hearing, the Secretary of State agreed to issue a residence card but sought summary disposal. The central issues were the appropriate disposal of the appeal and the position of extended family members affected by the gap in domestic appeal rights.

1. Appeal allowed. The Tribunal remade the decision under the Immigration (European Economic Area) Regulations 2006 and allowed the appellant’s appeal. The CJEU ruling established that the Surinder Singh principle required the Secretary of State to facilitate residence authorisation for a non-Union unmarried partner in a duly attested durable relationship with a Union citizen returning after exercising free-movement rights.

2. The Tribunal could not dispose of the case by consent under rule 39 because the appellant did not consent. Although the Secretary of State had effectively superseded the refusal by accepting the CJEU ruling and undertaking to issue a residence card, the Tribunal retained jurisdiction. Applying SM (withdrawal of appealed decision: effect) Pakistan [2014] UKUT 00064 (IAC), it was appropriate, having regard to the overriding objective and the lengthy history, to give a reasoned judgment rather than summarily dispose of the appeal.

3. The appellant had a statutory appeal under the 2006 Regulations. Khan v SSHD [2017] EWCA Civ 1755 held that the First-tier Tribunal had jurisdiction over a refusal to exercise discretion in favour of a claimed extended family member. That conclusion was specifically approved in SM (Algeria)(Appellant) V Entry Clearance Officer, United Kingdom Visa Section [2018] UKSC 9.

4. The amendments made by the Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019 restored appeal rights for extended family members but did not operate retrospectively. For those affected by the gap between the 2006 regime and the amended 2016 regime, a fresh decision could generate a new appeal right. Alternatively, the CJEU ruling had direct effect. An affected person could seek an extension of time under rule 20 of the First-tier Tribunal Rules so that the Tribunal could consider an appeal consistently with the overriding objective.

• Upper Tribunal (Immigration and Asylum Chamber): In this judgment, the Tribunal retained jurisdiction, remade the decision and allowed the appeal.
• Court of Justice of the European Union: Following a preliminary reference, Secretary of State for the Home Department v Banger [2018] EUECJ C-89/17 held that residence for a durable unmarried partner had to be facilitated and that an effective redress procedure was required.
• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal had set aside the First-tier Tribunal’s decision on 8 January 2016 and subsequently stayed the proceedings to make the CJEU reference.
• First-tier Tribunal: Allowed the appellant’s appeal against the refusal of a residence card.