Opinion: Extended family members could have a right of appeal (even under the 2016 Regulations)
In Sala (EFMs: Right of Appeal)  UKUT 411 (IAC), the Upper Tribunal held that, as a decision on an application for a Residence Card for an extended family member requires the exercise of discretion by the Secretary of State, it is not a decision which concerns the Appellant’s entitlement to be issued with a Residence Card. As a result, such a decision does not meet the definition of “EEA decision” and does not carry a right of appeal under Regulation 26 of the Immigration (European Economic Area) Regulations 2006.
As set out in detail in an earlier post by Catherine Taroni, in Khan v Secretary of State for the Home Department  EWCA Civ 1755, the Court of Appeal overturned the Upper Tribunal’s ruling in Sala. The grounds on which the appeal was allowed turned on the interpretation of the 2006 Regulations. The Court concluded that the interpretation of a “decision which concerns an entitlement” includes a decision on an application for a Residence Card, and therefore it is an EEA decision carrying a right of appeal.
Unlike the 2006 Regulations, the definition of “EEA decision” within Regulation 2(1) of the Immigration (European Economic Area) Regulations 2016 explicitly excludes a decision to refuse to issue a residence document to an extended family member of an EEA national, thereby precluding an appeal against the decision under Regulation 36 of the 2016 Regulations.
The “Explanatory Memorandum to the Immigration (European Economic Area) Regulations 2016 No. 1052” states that the exclusion from the definition in the 2016 Regulations was in light of the judgment in Sala.
Despite this, the stance of the First-tier Tribunal appears to be that, since the appeal in Khan was only allowed on the interpretation of the 2006 Regulations ground, there is still no right of appeal for extended family members under the 2016 Regulations, due to the explicit exclusion from the definition.
Nonetheless, the doctrine of supremacy of EU law should not be disregarded. The EEA Regulations, incorporating the Citizens Directive in domestic law, have to be read in accordance with the Directive or be disapplied in the event they are incompatible with it or other directly effective provisions of EU law.
The judgment in Sala was soon followed by a referral to the Court of Justice by a differently constituted chamber of the Upper Tribunal in the Banger (Unmarried Partner of British National)  UKUT 00125 (IAC) decision, published on 30 March 2017.
The questions referred are set out in paragraph 15 of the Order for Reference to the Court of Justice of the European Union pursuant to Article 267 of the Treaty on the Functioning of the European Union. The relevant question is number 4:
(4) Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive?
In Banger, the Upper Tribunal considered the decision in Sala, yet proceeded to refer the aforementioned preliminary question to the CJEU. In other words, whether there is a right of appeal against a decision refusing to issue a Residence Card to a person claiming to be an extended family member under the Directive was found not to be acte clair.
Consequently, the Tribunal must disapply the provisions of the 2016 Regulations which preclude a right of appeal. In paragraph 24 of the judgment in Factortame Ltd, R (On the Application Of) v Secretary of State for Transport  UKHL 13, the House of Lords ruled that:
“the national courts may, indeed must, disapply a national law which conflicts with a Community provision having direct effect, once a definitive finding has been made to that effect (or, at any rate, must achieve that substantive result), they must also be able to disapply that law provisionally, provided that the preconditions are satisfied, where the incompatibility is not entirely certain or “established” but may call for a preliminary ruling by the Court of Justice.” (paragraph 24)
Whilst the incompatibility in this matter is not yet established, a preliminary question regarding the incompatibility of domestic law with the Citizens Directive has been referred to the CJEU for a ruling in Banger. In accordance with the principle in Factortame (No.2) and considering the Directive has direct effect, interim relief must be granted to provisionally disapply the relevant parts of the 2016 Regulations, giving the Tribunal jurisdiction to consider appeals of extended family members until Banger is decided, in the event two conditions are met: there is a prima facie case the 2016 Regulations, insofar as they preclude a right of appeal for extended family members, are incompatible with EU law, and that the balance of convenience test is met, i.e. there will be serious and irrevocable damage to the individuals affected if interim relief is not granted whilst the preliminary question regarding incompatibility is pending.
If the above is not accepted, the Tribunal should at least consider staying any decisions on jurisdiction until there is a ruling in Banger, as the question of incompatibility has not been resolved. Banger is listed for a hearing on 17 January 2018. An opinion by the Advocate General may take several months and the CJEU’s judgment will follow later. During this time, the appeal rights of extended family members should be reinstated.
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