This appeal was heard in the Upper Tribunal (Immigration and Asylum Chamber) (UT) on 20/03/19 following a stay of proceedings to allow a referral to be made to the Court of Justice of the European Union (CJEU) concerning the rights of Extended Family Members of a European Economic Area (EEA) nationals to exercise a right of appeal and benefit from the ‘Surinder Singh’ principle.
The Appellant was the non-EEA partner of a British citizen who had been working in another member state (the Netherlands) and sought to return to the UK with him as his Extended Family Member (EFM). The ‘Surinder Singh’ principle permitted a British citizen exercising Treaty rights in an EEA state to be treated as an EEA national on return.
On 26/09/13 the Secretary of State for the Home Department (SSHD) refused to issue the Appellant a residence card on the basis that they could only be issued to spouses and even though the Appellant had been granted a Dutch residence card in her capacity of an extended family member (EFM).
The Immigration (European Economic Area) Regulations 2016 specifically excluded a right of appeal EFM to the First-tier Tribunal (” FtT“) and this was reinforced by the case of Sala (EFMs: Right of Appeal)  UKUT 00411 (IAC).
The Appellant nevertheless appealed to the FtT and although her appeal was allowed however the SSHD was granted permission to challenge that decision to the UT.
In 2017, the UT stayed the appeal and referred questions to the CJEU which ruled among other things, in July 2018, that the ‘Surinder Singh’ principle did extend to unmarried partners in a durable relationship.
In 2018, the Supreme Court established in SM (Algeria)  UKSC 9 that a right of appeal did exist in cases such as the Appellant’s.
The Appellant’s case which had been stayed was thereafter resumed in the UT.
Decision of the UT
The court considered the position of those EFMs whose decisions were made between Regulations denying them a right of appeal and the amended provisions of the EEA (EU Exit) Regulations 2019 which confirmed a right of appeal with effect from 29/03/19.
The court noted that it was open to an EFM whose applications had been refused before during this time to request a new decision from SSHD in order to generate a right of appeal. Alternatively affected EFM’s could apply under rule 20 of the Tribunal Procedure (First-tier Tribunal) (IAC) Rules 2014 for an extension of time to provide a notice of appeal to that Tribunal to have their cases listed for hearing before the FtT.
The Appellant who by this time had been granted entry clearance as a spouse under the Immigration Rules in November 2016 was notified by the SSHD that a residence card would be issued to her.