A Judicial Awakening:Extended Family Members Should Never Have Been Allowed to Have Appeal Rights

Very recently, having regard to the case of Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC),  the Upper Tribunal  has apparently  suddenly  awakened to  the conclusion  that there is no statutory right of appeal against a decision of the Secretary of State not to grant a residence card to a person claiming to be an Extended Family Member. The Upper Tribunal’s  judgment runs to 88 paragraphs but makes no easy nor enjoyable  reading.  It would  have been hoped that for a decision  very most likely  to  be  read by  potential  applicants, most without  legal  knowledge nor familiarity  with   complex terminology,  the Upper Tribunal could have sought to  produce  a much more simplified and  non- meandering judgement. For meander they did, in order to  justify their conclusions.

 

For a party that strongly sided with the Appellant on the issue of the Tribunal’s jurisdiction during proceedings in Sala, the Home Office have wasted no time in swiftly publishing amended guidance to reflect that judgement. The policy guidance, Extended family members of European Economic Area (EEA) nationals – v3.0 was published on 22 September 2016 to state that for relatives and durable partners, an application from an extended family member for residency documentation such as a residence card, upon refusal does not attract a right of appeal, as it is not an “EEA decision’ as defined in regulation 2 of the 2006 EEA regulations.

 

Who are extended family members -EFM’s?

 

The appeal in Sala raised  the issue of whether a person who is refused a residence card as an “extended family member” under the Immigration (EEA) Regulations 2006 as amended, has a right of appeal to the First-Tier Tribunal under regulation  26.

 

Regulation 8 of the 2006 EEA Regulations defines an extended family member as a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who is either:

 

• A relative of an EEA national or their spouse or civil partner who is dependent on the EEA national or is a member of their household, and:- is accompanying the EEA national to the UK or wishes to join them, or has joined them in the UK and continues to be dependent on them or to be a member of their household.

• A relative of an EEA national or their spouse or civil partner who strictly requires the personal care of the EEA national or their spouse or civil partner due to serious health grounds.

• A relative of an EEA national who would meet the requirements of the Immigration Rules for indefinite leave to remain (other than those relating to entry clearance) as a dependent relative of an EEA national as if the EEA national was a person present and settled in the UK.

• The partner of an EEA national, other than a civil partner, who can prove they are in a durable relationship with the EEA national. According to the policy guidance, a durable relationship is an unmarried partnership which has normally subsisted (continued in existence) for two years or more.

As per the Secretary of State’s stated guidance, in relation  extended  family members, there is no limit on the distance of the relationship between the EEA national or their spouse or civil partner and the extended family member as long as they can provide valid proof of the relationship between them.

 

The term ‘relative’ includes:

 

• brothers

• sisters

• aunts

• uncles

• cousins

• nieces

• nephews.

Again as per relevant Home Office Guidance, this list is stated not to be complete. Also included are those related by marriage and further generations of the above relatives such as great-aunts, great-nephews and second cousins.

 

So what is the difference between Direct Family Members and Extended Family Members?

 

Family members who come under Regulation 7(1)(a), (b) and (c) of the 2006 EEA Regulations are often called ‘core ‘or ‘direct’ family members.

 

The following can be considered as direct family members:

 

•  spouse or civil partner

•  direct descendants of the EEA national or their spouse or civil partner who are:- under the age of 21; dependants of the EEA nationals or their spouse or civil partner

•  dependent direct relatives in the ascending line of the EEA national or their spouse or civil partner

Direct family members have an automatic right of residence in the UK for as long as they remain the family member of that EEA national and that person is either:

 

•  entitled to reside in the UK for an initial period of 3 months

•  a qualified person

•  has a right of permanent residence

Article 23 of Directive 2004/38/EC allows the family members of EEA nationals who have the right of residence in the UK to work or become self employed.

 

Direct family members of an EEA national sponsor may not automatically lose the right of residence if their relationship ends.

 

Extended family members do not have automatic rights to enter and reside in the UK. Under regulation 7(3) of the 2006 EEA Regulations, an extended family member has the same rights as a direct family member, providing they continue to satisfy the conditions of regulation 8 and they have been issued with:

 

• an EEA family permit

• a registration certificate, or

• a residence card.

 

The above documents must remain valid and not have been revoked.

 

Notable relevant and more specific  differences  also include the following:

 

• Directive 2004/38/EC (the “Citizens Directive”) is primarily concerned with the free movement and residence of EEA nationals and their “family members” as defined in Article 2.2 of that Directive. So far as “other family members” including those in a “durable relationship”, are concerned, Article 3.2 of the Citizens Directive provides that a Member State should “in accordance with its national legislation, facilitate entry and residence” of “the partner with whom the Union Citizen has a durable relationship, duly attested”. The relevant domestic law is contained in the EEA Regulations 2006.

• By reference to Regulation 17(4)(b) of the 2006 EEA Regulations, the Secretary of State has a discretion to issue a residence card where a person establishes they are an EFM. Unlike the position with a family member of an EEA national, an EFM has no right to be issued with a residence card as is the case for EEA nationals and their “family members” under regulations 16 and regulations 17(1)-(3)

• It has been accepted by the CJEU that the rights of free movement and residence conferred upon EEA nationals and their “family members” are not directly replicated in the case of EFMs (as per, SSHD v Rahman and others (Case C-83/11) [2013] Imm AR 73). A Member State’s obligations are limited, only requiring it to “facilitate” entry and residence in accordance with national legislation founded on an extensive examination of an individual’s personal circumstances.

• Once a residence card is issued, the EEA Regulations 2006 place EFMs in the same position as “family members” (“treated as family members”) provided that they continue to satisfy the conditions in regulation 8 which resulted in their being EFMs and their documentation remains valid and has not been revoked. Regulation 7 lists those who are to be treated as family members for the purposes of the Regulations, including in regulation 7(3):Thereafter, the EFM has the same right to admission and residence under the EEA Regulations 2006 as does a “family member.

• For EFMs, recognition of their rights of admission and residence is conditional upon the relevant document, whether family permit, registration certificate or residence card, being issued under the EEA Regulations 2006 (as per, Aladeselu and others v SSHD [2013] EWCA Civ 144 at [52]). This, contrasts with the position of “family members” who derive their rights of admission and residence directly from EU law and the relevant documentation is merely evidence of that right. The rights of family members derive from the Citizens Directive, those of EFMs from national law apart from the procedural right to have their applications determined following extensive examination of their personal circumstances. Family members have rights independent of being issued with a residence card. EFMs’ rights, if any, derive from the exercise of the Secretary of State’s discretion to issue (and allow them to keep) a residence card; their substantive rights arise only after the card is issued.

• A third country national who has been issued with a residence card on the basis he is an EFM because of a ‘durable relationship’ would be “treated as a family member” by virtue of regulation 7(3)– at least so long as the condition qualifying him was maintained. Any appeal against a decision made under the EEA Regulations 2006 by such a person, including a refusal to renew the card would, on the face of it, fall within regulation 26(1) and (3) as an appeal by “a person…[who] claims to be a family member”.

• A third country national who now claims to be an EFM is subject to removal under the general removal provisions and not under the EEA Regulations 2006 (see Bilal Ahmed v SSHD [2016] EWCA Civ 303).

Considerations and Conclusions in Sala

 

As noted at paragraphs 10, 12, 33, 37, 38, 39, 40, 45 and 63 of the Upper Tribunal’s  judgement,  it  is  clear that  not only those representing the Appellant but the Secretary of  State herself  made  frequent and pressing submissions to the effect that an extended family  does  have a right of appeal under the EEA Regulations 2006 against the (discretionary) refusal to issue a residence card. The reasons why the Secretary of State may have sided with the Appellant on the issue  is noted at paragraph 52 of the  judgment in Sala:

 

“an appeal to the FtT was more ‘expedient’ as it allowed resolution of the factual issue of qualification as an EFM at the same time as a determination of the proper scope of the exercise of the discretion to issue a residence card”.

 

 The Upper Tribunal had no hesitation in acknowledging  at paragraphs 43 and 84 of their judgment  that the issues  before them were  difficult to determine. Equally acknowledged at paragraph 43 of their decision is that  “It has, undoubtedly, long been assumed by the Secretary of State and by numerous judges hearing appeals against decisions to refuse to issue an EFM with a residence card that a right of appeal exists under the EEA Regulations 2006. There have been onward appeals to the Court of Appeal. With one exception, the issue of whether a right of appeal exists has never been addressed. A right of appeal was accepted by the AIT in LO (Partner of EEA National) Nigeria [2009] UKAIT 00034”.

 

In the Upper Tribunal’s  judgment,  having regard to paragraph 48 of their decision, the natural and ordinary meaning of the definition of an EEA decision in regulation  2(1), point (b), does not include a decision to refuse a residence card to an EFM under regulation  17(4) or, by parity, to refuse a registration certificate to an EEA national EFM under regulation  16(5). The consequence  was that the Secretary of State’s decision was not an ‘EEA decision’ and the appellant had no right of appeal.

 

Further, as  per paragraph 67 of their judgment, the  Upper Tribunal considered that whatever may have been Parliament’s understanding in amending the Regulations so as to insert sub-para (2A) into regulation  26, that cannot affect the interpretation of the Regulations and, in particular, the definition of an “EEA decision” as originally enacted in 2006.

 

At paragraph 75 of their judgement, the Upper Tribunal stated that the  previous provisions in the EEA Regulations 2000, mirror in large measure the EEA Regulations 2006 as regard the position not only of EEA nationals and their family members but also  those  now referred  to as EFMs. In the Upper Tribunal’s  view, neither immediately prior to 2006 nor thereafter is there any statement  which indicates that the purpose of Parliament in either set of Regulations was to confer a right of appeal against a decision to refuse to issue a residence document to a person who is now known as an EFM.

 

The way forward

 

One cannot help but wonder whether EFM’s with pending  appeals before the Tribunal at the time  the decision in Sala was notified, are now in effect  being left  largely  open to  removal  if the Tribunal is now sending  out notices indicating that they have no jurisdiction to entertain  the appeals. On the basis of Sala such Appellants having no right of appeal and the First-tier Tribunal having  no jurisdiction to hear the appeal, there would be no appeals to withdraw.

 

Where potential applicants are in a position to do so in relation to genuine relationships,  it is  worth considering  marrying  so as to  gain the benefit  of recognition  as a direct family member, ie a spouse.

 

Where an EFM application is intended to be submitted,  prior detailed  and effective preparation is the key so as to be  in a position to  mount a challenge by way of judicial review  upon refusal.  That such a course of avenue is available  is evident   having regard to paragraphs 23 and  52  in Sala.

 

Whether or not the decision  in Sala will  withstand an appeal to the Court of Appeal,  if a such a challenge is pursued,  remains to be seen. For now  the position is unequivocal – not that there may be a right of appeal, but that there is no right  of appeal where applications from  EFM’s are refused.