SALA OVERTURNED BY COURT OF APPEAL NO LONGER GOOD LAW

[ScottJonesy]

Well Banger is of no relevance. Save for the specific Surinder Singh questions, the Supreme court has more or less addressed the appeal right question.

Well Banger is now their only ground so they think it is. Less than three weeks away, no final bundle, them jostling for an adjournment based solely on Banger. Not sure what they're playing at. Or how to respond that Banger isn't relevant as you say.

[eubritish]

Does anyone have any news about the ECJ ruling? it was supposed to be today at 09:30 CET. I have been frantically searching online but can't find anything yet. I am being impatient I know.

[Obie]

Here is the opinion.

[eubritish]

And from what I understand, the opinion hasn't actually answered the 4th question but left it to the national court to decide whether the existing remedy (of judicial review) is sufficient to meet the directive.

I guess we all know what that means.

[Obie]

Well i was not expecting the Court to say that Extended Family Members have appeal rights under the EEA Regulations, as memberstates do have a degree of autonomy as to how they provide judicial remedy for their administrative decision.

However having seen the prescription given by the CJEU opinion into the criteria that should be contained in this review, it seems that the Judicial review system may not be adequate for the purpose of Article 3(2) examination, and the UK may well have to provide a Right of Appeal, if the Opinion finds it ways into the Judgement of the CJEU.

Most importantly though, the application of Surinder Singh to Extended family member was most helpful in my view.

[eubritish]

I am not sure if it is really that helpful. EFM are now included in the definition of Surrinder Singh which is great, but if their application is refused for whatever reason, there is no right of appeal.

Even if the application is wrongly refused, like in case of my EFM that has been refused because I have become dual national.

Judicial Review is an option but I don't think many of us have thousands of pounds lying idle that we can splash on JR, especially when JR doesn't challenge the decision itself but mere the legality. That is not much help against the cowboys employed as Entry Clearance Officers.

[Obie]

The Criteria set out, is such that the Home Office may well need to make a new provision in the JR regime, or to prevent the hassle, simply confer a right of appeal on Extended family members.

However we do not know what the Court will conclude yet.

[eubritish]

I wish and hope you are right.

Any idea how long does it take for the judgement to come after opinion of AG? is there any sort of set timeframe or it just depends on their schedule as always? I couldn't find any indication by searching online.

It looks like I will have to log the appeal to FTT as my 28 days deadline runs out on 18th April. It will be thrown out by FTT for lack of jurisdiction but there is not more I can do at this point.

I had sent a Pre-Action Protocol letter (via email) to UKBA but they haven't responded, as was expected.

[alihamza]

hi everyone whet happen now to appeal been allowed in upper tribunal as my appeal was allowed in upper tribunal and now respondent have right to as appeal please Mr obie i information about is gon happen and one more think if the home office they have to wait for judgement to come out

[alihamza]

The Criteria set out, is such that the Home Office may well need to make a new provision in the JR regime, or to prevent the hassle, simply confer a right of appeal on Extended family members.

However we do not know what the Court will conclude yet.

[mkhan2525]

The advocate opinion is esentially saying that extended family members should be treated more favourably than those entering a Member State under its domestic Immigrations rules but by no means should residency rights be guaranteed.

Whilst an unmarried partner may succeed under the Singh Judgment it is a big fat no for other family members.

[eubritish]

The advocate opinion is esentially saying that extended family members should be treated more favourably than those entering a Member State under its domestic Immigrations rules but by no means should residency rights be guaranteed.

Whilst an unmarried partner may succeed under the Singh Judgment it is a big fat no for other family members.

I don't think having a guarantee of issuing entrance or residence to partner/other extended family was ever the question. There is no entitlement for them because they are not family members but mere beneficiaries.

[Obie]

Whilst an unmarried partner may succeed under the Singh Judgment it is a big fat no for other family members.

I am not sure how or where you deduced the Big Fat no from.

The totally goes against the whole logic of the Opinion.

The AJ states that the UK position that Surinder Singh applies to Family member alone cannot be sustained.

The Advocate General state the fact that Extended family member were not mentioned in Singh does not mean it is incapable of applying to them. It made the point that the questions asked relates to family member, and hence the answer received. That the UK cannot use the answer to a specific question asked as a basis for saying the scope is confined to the answer given.

Firstly there is no indication in the opinion that the scope is confined to unmarried partner, as the court was dealing with unmarried partner so it needed to mention unmarried partner, but it does not mean that dependents were excluded. Infact i am of the view that there are strong argument that all Extended family members are covered by it.

[mkhan2525]

Whilst an unmarried partner may succeed under the Singh Judgment it is a big fat no for other family members.

I am not sure how or where you deduced the Big Fat no from.

The totally goes against the whole logic of the Opinion.

The AJ states that the UK position that Surinder Singh applies to Family member alone cannot be sustained.

The Advocate General state the fact that Extended family member were not mentioned in Singh does not mean it is incapable of applying to them. It made the point that the questions asked relates to family member, and hence the answer received. That the UK cannot use the answer to a specific question asked as a basis for saying the scope is confined to the answer given.

Firstly there is no indication in the opinion that the scope is confined to unmarried partner, as the court was dealing with unmarried partner so it needed to mention unmarried partner, but it does not mean that dependents were excluded. Infact i am of the view that there are strong argument that all Extended family members are covered by it.

Well my view wasn't in the context that Singh doesn't apply to other family members. I was concerned with the advocate's opninon suggesting Member States have discretion on what factors to consider when examing their personal circumstances.

Whilst an unmarried partner in theory have more rights than say an Aunt or a sibling there will undoubtedly be more strict criteria in place for other family Members. At the end of the day it is up to HO if they grant residency rights or not to extended family members. So it doesn't look good for other family members.

[Obie]

I don't think an aunt who is dependent on an EU citizen or a brother dependent on an EU citizen will have less rights that a person in a durable relationship. I did not see anything in the opinion that indicates that such is the view of the court.

The relevant factors applies to every one.

The relevant factors may include, for example setting out in national law how long a durable relationship should have existed, the evidence to provided to demonstrate durable relationship, how long dependency or membership of an household has existed for, the strength of the relationship of the applicant to the EEA national. These are factors which the have a discretion to determine, and that is what the court appear to be indicating.

[Obie]

Further analysis of the Opinion in Banger.

46. Although it forms no part of my reasoning in reaching this conclusion, it appears to me that an appeal before a Tribunal is a preferable procedure in this context to judicial review. I have already indicated that the tool of judicial review has proved to be flexible, capable of being shaped to different levels of intensity and intrusive enquiry, depending on the matter in hand. However, the hearing of an appeal before a tribunal is probably somewhat better as a procedure for the intensive review of the facts required by Article 3(2) of the Directive and required on the part of the Secretary of State by Regulation 17(5).

When one looks at the views of the court of appeal in Paragraph 46, and the views of the Advocate general which appears to align indirectly with the views of the court of appeal, it is clear that there is a lot for extended family member to be hopeful of it the court adopt the opinion of the AG.

[eubritish]

I agree. The view of the previous poster I believe is more pessimistic.

Opinion though doesn't mean anything for the Extended Family members going through the whole stress. The judgement of ECJ is 3 to 6 months away so the wait and misery continues.

[kashifsuhail]

A.A and hi everyone.my application is an extended family member of a European union. i have received a hearing date letter from first tier tribunal which is in october this year.

can anyone guide me about hearing and what kind of questions can the judge ask me? this is my first hearing since i submitted my appeal in july 2016.
and how many chances are there to win the appeal?
i am confused and worried about it.
i realy appreciate. thanks

[Imran_Mushtaq]

I also received hearing date of coming October 18.
Last year my appeal was dismissed due to SALA case and now upper tier tribunal again allow to hear my appeal at first tier tribunal.

[Raja2018]

Hi can you please tell when upper tribunal allowed your appeal for hearing as mine was allowed in end of january and remitted to ftt but still waiting for hearing date.

[Imran_Mushtaq]

My appeal was also allowed in last pf january and in mid of april i received the hearing date which is 26 October, 2018.
I am also little bit confuse about the result of Banger case. What will be happened? Will banger affact on this appeal?

[Raja2018]

A.A and hi everyone.my application is an extended family member of a European union. i have received a hearing date letter from first tier tribunal which is in october this year.

can anyone guide me about hearing and what kind of questions can the judge ask me? this is my first hearing since i submitted my appeal in july 2016.
and how many chances are there to win the appeal?
i am confused and worried about it.
i realy appreciate. thanks

Hi can you please tell when upper tribunal allowed your appeal for hearing as mine was allowed in end of january and remitted to ftt but still waiting for hearing date.
Please read the previous pages of msgs you will find some good answers about it. I haven't faced a judge for my appeal yet so I can't help you much.

[Raja2018]

My appeal was also allowed in last pf january and in mid of april i received the hearing date which is 26 October, 2018.
I am also little bit confuse about the result of Banger case. What will be happened? Will banger affact on this appeal?

Thank you for the reply, my appeal was not heard because of SALA but after the law changed it was allowed for hearing by UT. I believe Banger won't effect us. Good luck with your hearing, hopefully I will soon receive my letter for hearing date.

[kashifsuhail]

hi raja28 i applied for the appeal in july 2016. but in september 2016 the sala case came into effect.
then in july 2017 i received a letter from the court that i should send grounds otherwise the judge will take decesion in 14 days .but my solicitor said that we should wait for the sala case decision.
in january 2018 i called the tribunal and asked about the hearing date they said i will receive it very soon.
now i have hearing in 2 october 2018.
i have never been to court befor.

[Raja2018]

Thanks for the reply. I received a letter yesterday for my hearing date, it's end of September. Case was remitted to FTT by UT in end of January.