Judicial review for EEA extended family members
The headnote in the Upper Tribunal decision in Sala (EFMs: Right of Appeal: Albania)  UKUT 411 (IAC) states simply: “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.” Sala concerned an application for a Residence card as a durable partner. This was refused, appealed and ultimately the Upper Tribunal raised the questions whether the appellant had a right of appeal under the Regulations, and, if so, whether the judge was entitled to exercise the discretion under Regulation 17(4) himself.
Regulation 26 sets out the appeal rights in relation to EEA applications. Until the determination in Sala, when applications for Residence Cards as extended family members as durable partners or dependent relatives or other members of the household under Regulation 8 of the EEA Regulations were refused, Notice of Refusal was given stating there is a right of Appeal. It appears that in the future this will no longer be the case; the Home Office guidance for extended family members was updated on 22 September 2016 to state that there is no right of appeal. Thus applicants will only be able to challenge refusal decisions by way of judicial review.
Paragraph 23 of Sala says “if no right of appeal exists, then judicial review will lie as the appropriate remedy. In Rahman the court made clear that a full merits-based appeal was not required by the Citizens Directive; only a judicial review to ensure that the decision-maker has "remained within the limits of the discretion set by [the] Directive"…”
Judicial review process
Judicial reviews can be brought where there is no alternate remedy, and need to be brought promptly, and must be received not later than three months after the grounds to make the claim first arose.
Judicial review in an Immigration setting is ordinarily handled by the Upper Tribunal. There are exceptions to this – Cart judicial reviews – but the judicial review of a Residence Card refusal would be in the Upper Tribunal.
The process of judicial review has a number of potential steps:
- Pre-action letter;
- Application for permission on the papers;
- Potential oral renewal permission hearing;
- Substantive hearing.
If there is overwhelming evidence, a pre-action letter alone may be sufficient to have a decision overturned. This is unlikely to be a common result.
Unlike with appeals, there is no guarantee that there will ever be a hearing – there must be sufficient merit for a judge to allow an oral renewal hearing asking for permission and to grant permission for a substantive hearing.
Making sure that there is merit to have the decision reviewed by a judge is therefore very important. In addition to judicial review fees, there are costs implications of pursuing judicial review, in that, if you are not successful you can be ordered to pay costs of the Home Office lawyers. The opposite also applies, so if successful, your reasonable costs are likely to be met by the Home Office.
Contact Our Immigration Barristers
For advice in relation to challenging an EEA extended family member decision by way of judicial review, contact our judicial review immigration barristers in London on 0203 617 9173 or via our online enquiry form.