The Upper tribunal (Immigration and Asylum) recently considered the case of Sala (EFMs: Right of Appeal )  UKUT 411 (IAC). The case highlights the issue of whether there is a statutory right of appeal against the Secretary of State’s decision not to grant a Residence Card to the Extended Family Member of an EEA national.No Statutory Right of Appeal for Extended Family Member
No Right of Appeal granted for EEA Extended Family Member
The case of Sala (EFMs: Right of Appeal ) involved an EEA citizen who had entered the UK illegally and shortly after applied for a Residence Card as an extended family member of an EEA national. The Appellant claimed to have a durable relationship with the EEA national and was regarded as an Extended Family Member under Regulation 8 (5) of the EEA Regulations 2006. The Appellant’s application for a Residence card was refused as the Home Secretary was not satisfied there was any evidence of a durable relationship. Therefore, chose not to exercise her discretion in granting the Residence Card due to the appellant’s illegal entry into the UK. The Appellant was informed that he had the right of appeal under s82 of the Nationality, Immigration and Asylum Act 2002.
Decision of the First Tier Tribunal dismissing Appeal
The Appellant’s appeal to the First Tier Tribunal was dismissed by Judge Knowles, although it was accepted that the Appellant was in a durable relationship with an EEA national and was an extended family member under Regulation 8 (5) of the EEA Regulations 2006. Judge Knowles stated that the Home Secretary should have exercised her discretion in accordance with Regulation 17 of the EEA Regulations 2006. However after considering the appellant’s circumstances the appeal was rejected.
Upper Tribunal: No Appeal Rights for EEA Extended Family Members
The Appellant appealed to the Upper Tribunal, claiming that the discretion available under regulation 17 (4) should have been used in his favour to grant him the Residence Card. The Appellant’s appeal was granted permission on the basis that the Secretary of Sate did not exercise her discretion fairly and it was exercised in accordance within the meaning of the regulation. Although the appeal was granted, the Upper Tribunal adjourned the hearing for a year and during this period, there was a new argument raised that there was no right to appeal the decision, to begin with for Extended Family Members. The Upper Tribunal held that Extended Family Members had no entitlement to a Residence Card but only had a right to be considered if they met the requirements. Essentially it is up to the Secretary of State to exercise her discretion to grant a Residence Card. The Upper Tribunal also stated that there was an error of law in the Secretary of State’s allowing the appellant the right of appeal to the First Tier Tribunal. The decision in Sala suggests that the only remedy available for appellants who wish to challenge a decision is on the application of law by Judicial Review. Therefore it is critical that a properly executed application is submitted in accordance with the UK immigration rules and the Home Office’s guidance.
Successful Applications & Appeals for EEA Residence Cards
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