No Statutory Right of Appeal for Extended Family Members
The Upper Tribunal in Sala (EFMs: Right of Appeal)  UKUT 411 (IAC) has ruled that there is no statutory right of appeal against a Home Office decision to deny an EEA Residence Card to the Extended Family Member (EFM) of an EEA national under regulation 17(4) of the Immigration (EEA) Regulations 2006.
Regulation 26(2A) played an important role in this case. It deals with an appeal by an individual who claims to be in a ‘durable relationship’ with an EEA national. Regulation 26 states, “a person may appeal under these Regulations against an EEA decision”. An EEA decision is defined in Regulation 2(1)(b) as, “a decision under these Regulations … which concerns a person's … entitlement to be issued with or to have renewed, or not to have revoked, a residence permit or residence document.”
According to the Upper Tribunal, there was no argument that the Secretary of State had made a decision under the EEA Regulations 2006 to refuse to issue the appellant with an EEA Residence Card. The key issue was whether the decision concerned the appellant’s ‘entitlement’ to be issued with an EEA Residence Card. The Upper Tribunal held that since, as had been observed in previous cases, the Secretary of State was exercising a discretion when making a decision to issue a Residence Card to an EFM, it could not be established that an EFM was ‘entitled’ to receive a Residence Card. Accordingly, no right of appeal existed under the EEA Regulations 2006.
A right of appeal has long been assumed or accepted for EFMs. This case changes all that, at least for the time being. However, the decision also has its limits. Whilst an EFM applying for a Residence Card will have no right of appeal to the Tribunal in the event that their application is refused, they will still have a potential remedy in judicial review. And in this respect it is important to note that in Sala, the Secretary of State conceded that the purported exercise of discretion was unlawful. It was wrong to state that the appellant had not provided enough evidence to allow an exercise of discretion and then to exercise discretion against the appellant merely on the basis that the appellant had entered the UK illegally. This was not an adequate consideration of the appellant’s claim to meet the requirement in regulation 17(5) that the Secretary of State must undertake an “extensive examination of the personal circumstances of the applicant”.
The decision in Sala also does not affect EEA nationals and their family members in any way, as it is only applicable to EFMs, who fall under the category of “other family members” according to the Article 3 of Directive 2004/38.
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If you are a family member or extended family member of an EEA national and need legal assistance for evaluating your options for getting a Residence Card, contact our immigration barristers in London on 0203 617 9173 or via our online enquiry form.