(Immigration and Asylum Chamber) Appeal Number: EA/13136/2016
THE IMMIGRATION ACTS
Heard at Field House
Decision and Reasons Promulgated
On 7 December 2018
On 15 January 2019
UPPER TRIBUNAL JUDGE GLEESON
UPPER TRIBUNAL JUDGE JACKSON
Bijoya Rani Das
(no anonymity order made)
For the Appellant: Mr A Malik, Counsel instructed by M-R Solicitors
For the Respondent: Mr E Tufan, a Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal dismissing her appeal against the Secretary of State's decision to refuse her a residence card under the Immigration (European Economic Area) Regulations 2006 as the extended family member of a British citizen. The appellant is the unmarried partner of that British citizen.
2. The grounds of appeal to the First-tier Tribunal and indeed the covering letter to the respondent argued both that the family member provisions in regulation 7, together with regulation 9 of the EEA Regulations were engaged (the latter being the Surinder Singh provisions for family members) and also that the regulation 8 provisions dealing with extended family members were engaged. The Secretary of State made no decision on regulation 8 and neither did the First-tier Tribunal. Whilst regulation 9 expressly only applies to family members and not extended family members (unless recognised as such by the issue of a residence permit by the authorities in the United Kingdom), for the reasons set out below, it was an error of law for the First-tier Tribunal not to have considered and determined whether the Surinder Singh provisions could extend to a family member such as the Appellant in this case.
3. In Article 3(2)(b) of Directive 2004/38, the host Member State is required, in accordance with its national legislation, to 'facilitate entry and residence for' the following persons:
"3 (2)... (a) Any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence;
(b) the partner with whom the Union citizen has a durable relationship, duly attested."
4. Subsequent to the decision of the First-tier Judge, the Court of Justice of the European Union handed down on 12 July 2018 its decision in Secretary of State for the Home Department v Banger (Citizenship of the European Union - Right of Union citizens to move and reside freely within the territory of the European Union - Judgment)  EUECJ C-89/17, concerning the Surinder Singh free movement right to include partners with whom a Union citizen has a duly attested durable relationship, as in Article 3(2)(b) set out above.
5. The Secretary of State and the First-tier Tribunal should have considered whether the Banger extension also extended as far as Article 3(2)(a) other family members (in the UK Regulations, extended family members). We are satisfied, in the light of Banger that requires to be considered now.
6. The complete failure to engage with the ground of appeal in relation to regulation 8 is an error of law and in the light of Banger arguably at least that it may be material.
7. Accordingly the decision of the First-tier Judge is set aside and the decision will be remade in the First-tier Tribunal on a date to be fixed.
Signed Judith AJC Gleeson Date: 3 January 2019
Upper Tribunal Judge Gleeson