New Upper Tribunal Case: Refused Residence Card- No Right of Appeal for Extended Family Members

The Upper tribunal (Immigration and Asylum) recently considered the case of Sala (EFMs: Right of Appeal ) [2016] 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

Choosing the right law firm from the beginning can ensure the correct applications are made from the outset this will not only allow for an easy mind in preparing for an application, but will also mean that in the long run EEA nationals will save time and money with a specialist law firm who follow the strict letter of the law and the Solicitors Regulations Guidelines.

Our team of experienced and professionally qualified immigration solicitors and barristers bear in mind the paramount duty of all legal representatives to act in your best interest whilst complying with the strict letter of the law. Our team of specialists can be distinguished from other law firms with our bespoke client approach and scrutiny of options available to you from the outset. We will be able to advise you in respect of the merits of your application by providing you with advice from our leading team of barristers before your matter even reaches the Home Office.

If you have instructed legal representatives and you are unhappy with their conduct you can contact us to discuss your case so that we can provide you with a case assessment. To contact one of our Immigration Solicitors or Immigration Barristers please complete our legal case assessment form and we will get in touch or call us now on 02030110276 for a telephone assessment.