In the case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC) the Upper Tribunal has ruled that there is no right of appeal against a decision by the Home Office to refuse a residence card to a person claiming to be an extended family member.

The official headnote:

There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member.

The decision does not affect EEA nationals themselves nor family members, only “extended family members”, usually durable partners, dependent other relatives or members of household: see paragraph 8 of the UK’s Immigration (EEA) Regulations 2006. In EU law this category of family members is referred to as “other family members”: see Article 3 of Directive 2004/38 (often referred to as the Citizens’ Directive).

The tribunal, chaired perhaps inevitably by Mr Ockleton, reaches this conclusion in the teeth of agreement between the parties that there was a right of appeal. The tribunal adjourned for year between July 2015 and July 2016 to enable the Attorney General and Government Legal Department to appoint a “friend to the court” to make the alternative argument, that there was no right of appeal. Even then, the friend to the court accepted the logic of the submissions made by the parties that there was a right of appeal.

The relevant legal provisions are paragraphs 2 and 26 of the Immigration (EEA) Regulations 2006 as amended. Paragraph 26 confers the right of appeal and paragraph 2 sets out the scope of that appeal. Paragraph 2 provides:

“‘EEA decision’ means a decision under these Regulations that concerns –

(a) a person’s entitlement to be admitted to the United Kingdom;

(b) a person’s entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card;

(c) a person’s removal from the United Kingdom; or

(d) the cancellation, pursuant to regulation 20A, of a person’s right to reside in the United Kingdom; but does not include decisions under regulations 24AA (human rights considerations and interim orders to suspend removal) or 29AA (temporary admission in order to submit case in person); …”

The tribunal knows best, of course, and concluded that the use of the word “entitlement” in paragraph 2 of the regulations meant that there was no right of appeal for extended family members, because they had no “entitlement” in the Immigration (EEA) Regulations 2006 as such, just a right to be considered for favourable exercise of discretion. There are no fixed qualifying criteria for extended family members, just some pre-qualifying criteria which if met merely mean the Secretary of State may exercise discretion.

Curiously, the tribunal makes no reference to the Citizens’ Directive itself. This is no doubt because the tribunal has consistently taken the line that the right of appeal is entirely determined by domestic law. However, if Article 3 of the Directive does confer an “entitlement” (“the host Member State shall, in accordance with its national legislation, facilitate entry and residence”) then it is arguable that the UK’s regulations are wrong or that if correctly read there is in truth an appealable entitlement.

There is also a separate argument about whether Article 31 of the Directive requires a right of appeal in this type of situation, but in cases such as Bilal Ahmed the tribunal has consistently (and arguably wrongly) held that it does not.

The decision confirms the immigration tribunal’s reputation as a jurisdictional shirker rather than worker. What happens next? All current appeals by extended family members will now have to be rejected by the tribunal as invalid. No further such appeals should be lodged or attempted. Instead, those unhappy with decisions by the Home Office will need to pursue an application for judicial review.

Judicial review is traditionally more expensive than appeals (although less so once the new appeal fees are implemented), slower than appeals (although less so given inordinate delays in the First-tier Tribunal), only declares the decision unlawful rather than substituting a new one (although less so in this context given that on extended family member appeals judges were only allowed to declare decisions unlawful anyway) and also involves a costs risk, in that the loser usually pays the legal costs of the winner (meaning that if you win you get most of your legal fees back from the Home Office, eventually).

In the meantime, the Sala decision itself may or may not be appealed by the Home Office; the claimant is actually happy with the outcome on a personal level because the Home Office conceded in 2015 that a wrong decision had been made (although the tribunal’s prolonged adjournment has delayed that occurring, unfortunately for him – law is more important than people, don’t you know). UPDATE 22 September 2016: early signs are that the Home Office does not plan to appeal because the Home Office policy guidance for officials has been updated to reflect the tribunal’s view on rights of appeal: Extended family members of EEA nationals.

The Home Office may choose to amend the Immigration (EEA) Regulations 2006 to restore the right of appeal beyond doubt. But I would not hold my breath, given the tendency to remove rights of appeal and the recent decision to impose huge fees on EEA nationals exercising their rights of appeal.

Source: Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC) (19 August 2016)