Case Study- Khan v SSHD – Right of Appeal for Extended Family Member

The Upper Tribunal delivered a controversial judgement in Sala (EFMs: Right of Appeal ) [2016] UKUT 411 (IAC). In this landmark case, the Upper Tribunal held that there is no Statutory Right of Appeal against the Secretary of State’s decision not to grant an EEA Residence Card to the Extended Family Member of an EEA national. However, the contentious decision in Sala was overturned by the Court of Appeal in Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755. It has been confirmed that it may be possible to appeal a Home Office decision as an Extended Family Member to the First Tier Tribunal.

The Facts in Khan – Application for EEA Residence Card as Extended Family Member

The Applicant was a Pakistani national who had applied for an EEA Residence Card as the Extended Family Member of an EEA National. At the time of his application, Mr Khan relied on his relation with his uncle who was a German national exercising Treaty Rights in the UK.  Mr Khan submitted ample evidence showing that he was an Extended Family Member under the EEA Regulations. Mr Khan’s application was refused by the Secretary of State as she refused to accept that Mr Khan was dependent on his uncle, therefore, could not be considered to be an Extended Family Member.

Mr Khan appealed to the First Tier Tribunal and his appeal was allowed. However, the Secretary of State appealed to the Upper Tribunal. The Upper Tribunal held that it had jurisdiction to hear the appeal as following the decision in Sala. The matter was then referred to the Court of Appeal.

Judgement in Khan – Can an Extended Family Member appeal?

The Court of Appeal held that there are discretionary powers conferred on the Ministers of the Crown and these should not be used arbitrarily and where the exercise of power is not used in accordance with the law it will be quashed by the courts. In particular, Lord Justice Longmore held:

“A litigant who is the subject of such a decision has an entitlement to an adjudication to that effect; at the very least, a decision by the Secretary of State not to issue a residence card is a decision which “concerns … a person’s entitlement to be issued with … a … residence card” even if it is a decision taken in pursuance of a discretion conferred on the Secretary of State”… If “that something” is a decision which is not “according to law” a claimant has an entitlement to relief or, at the very least, that decision is a decision that concerns an entitlement to the object sought to be obtained – here a residence card. As such, the Secretary of State’s decision to refuse Mr Khan a residence card, is, in my view, an EEA decision and can therefore be appealed in the ordinary way to the First Tier Tribunal.”

More importantly, it was held that an appeal before the Tribunal is a preferable procedure in this context to a Judicial Review Claim. The Court of Appeal judgement can be found at: Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755 LEXVISA Solicitors London

What does this mean for an Extended Family Member?

Previously, due to the decision in Sala the only remedy available for an Extended Family Member to challenge an erroneous Home Office decision was by way of Judicial Review.  Judicial Review applications can be very costly and should only be made as a last resort.  However, there is good news for an Extended Family Members following the decision in Khan, it has been confirmed that it may be possible to appeal a Home Office decision as an Extended Family Member to the First Tier Tribunal.

Using Legal Representation to submit a successful Extended Family Member appeal

Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration matter. You can instruct one of our immigration and visa legal representatives to successfully assist you with an appeal as an Extended Family Member of an EEA national. Our solicitors and Barristers will help you comply with the tribunal requirements/directions.

Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. If your application has been erroneously refused, our solicitors and barristers will ensure your appeal as an Extended Family Member has the best prospects of success.

The UK Immigration Rules are complex and a legal representative can help ensure that your appeal as an Extended Family Member meets the Rules.

Successfully submit an Extended Family Member appeal

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your prospects of submitting an Extended Family Member appeal before your appeal even reaches the Tribunal. We can assist you with the preparation and submission of an Extended Family Member appeal and ensure that you meet all the requirements of the relevant rules.

We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients.  We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to successful immigration applications and appeals. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation to discuss an Extended Family Member appeal.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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