The Upper Tribunal’s (Immigration and Asylum Chamber) decision in the case of Sala  UKUT 00411 removes the statutory right of appeal against refusals by the Home Office to grant a Residence Card to extended family members (EFMs).
The Sala decision is a landmark case in immigration law as it reverses the hitherto accepted position that EFMs had a right of appeal to an independent judge against a decision by the Home Office to refuse an application submitted on this basis.
Also, given the recent removal of appeal rights introduced by the government against Home Office decisions, this case effectively closes another avenue to a right of appeal - but this time brought in by the judiciary. Inevitably this is only likely to lead to an increase in refusals by the Home Office for these types of cases.
This decision not only applies to those in a ‘durable’ relationship, but all EFMs. EFM’s are defined as relatives of both the EEA national and his spouse or civil partner who are:
dependent on them or is member of his household, or
a relative who on serious health grounds requires the care of the EEA national or his spouse or civil partner.
It will therefore have a wide impact on EEA nationals and their family members who fall into this category.
Fact of the case
In the case of Sala, the appellant was an Albanian national who was in a ‘durable’ relationship with a Slovak national. The Home Office refused the application by the appellant as it did not believe the couple were in a ‘durable’ relationship. The decision was appealed to the First Tier Tribunal (FTT).
The judge of the FTT accepted that the applicant was in a ‘durable’ relationship. However, the First Tier judge found that the Home Office’s use of its discretion under reg 17(4) of the EEA Regulations 2006 (2006 Regulations) was not ‘consistent’ with the requirement in reg 17(5).
The appellant duly appealed the First Tier judge’s decision to the Upper Tribunal (UT), who on a second application for leave, allowed permission to appeal on the basis that the decision was arguable.
At the first hearing the UT raised two questions to the representatives, which had not been previously been brought before it:
“Whether the applicant had a right of appeal under the Regulations; and
whether if he did, the judge himself had been entitled to exercise the discretion under reg 17(4) himself.”
The hearing was adjourned to allow the legal representatives to formulate legal arguments.
At the subsequent hearing the legal representative for both the Home Office and the appellant argued that the applicant did have a right of appeal – a generous position for the Home Office to take up, particularly in the current climate.
The UT then put forward a further question to the legal representatives - that ‘no right of appeal existed’.
In the context of immigration appeals and somewhat unusually, the UT then made a request to the Attorney General to act as a friend to present its arguments.
The UT noted EFMs had no ‘right’ to be issued with a Residence Card, unlike a family member who have. It observed that Directive 2004/38/EC should ‘facilitate entry and residence” of the third party national. It also noted that EFMs still had the right to a legal remedy through ‘judicial review’ and that the case of SSHD v Rahman and others (Case C-83/11) (2013] Imm AR 73 provided a precedent where a ‘full merits-based appeal was not required by the directive; only a judicial review to ensure that the decision-maker “remained within the limits of the discretion set by the directive”.
The UT observed that once issued, the Residence Card places EFMs in the ‘same position’ as the family members. However, it also found that EFMs right to admission and residence is ‘conditional’ on the ‘relevant document.... being issued.’
It then considered whether the right of appeal existed and heard submissions by the representatives that Parliament had not sought to ‘differentiate’ the appeal right of EFMs and family members.
The UT disagreed with the representatives positions. It found that the language of the 2006 EEA Regulations were different, in that family members had the ‘right’ to be issued a Residence Card on the fulfilment of conditions, but that EFMs do not have a right to a Residence Card ‘but is reliant upon a favourable exercise of discretion before the card is issued’ and uses this as the legal basis or distinction for its position.
The UT having made this finding went on to state that there was ‘clear jurisprudential distinction, well recognised in public law generally, between the exercise of discretion and the carrying out of a duty.’ Therefore in the case of EFMs no ‘decision’ can be made and therefore no right of appeal is generated.
The position for EFM’s who have ‘precarious’ cases in now somewhat bleak. In the event that the Home Office refuses their application the only avenue left to challenge the Home Office decision is to seek Judicial Review. This route should only be pursued based on careful consideration as it is an expensive process. The applicant is not only faced with his own potential legal costs but a wasted ‘costs order’ being imposed for the payment of the sides legal costs.
It also closes off an avenue which previously enabled an applicant to introduce additional evidence and importantly, to request the judge to consider the facts at the date of the immigration hearing which could have led to a favourable decision – and as a corollary bought more time for the applicant to remain in the UK until their case was heard.
If you require immigration advice relating to an EEA application for an extended family member or a similar EEA case or other immigration matter please contact one of our solicitors on +44 207 038 3982, via email at firstname.lastname@example.org or by completing our online submission contact form at www.rlegal.com
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