Righting a wrong wrought by the Upper Tribunal:Court of Appeal decides Sala was wrongly decided

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The next time that the Upper Tribunal fixates on disturbing  settled EEA  law,  perhaps they  should consider  taking a  very long pause  so as to avoid  reaching decisions which potentially  result in  injustice. 

In Sala (EFMs: Right of Appeal) [2016] UKUT 411 the Upper Tribunal reached a conclusion that there is no statutory right of appeal against the decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member. This was by reference to  the 2006 EEA Regulations.  The affected  individual could challenge the decision of the Secretary of State by way of Judicial Review.

 

The  Court of Appeal in Khan v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1755 (09 November 2017),  has  now overturned Sala. The issue in Khan was  whether Sala was wrongly decided, ie  is there jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the Secretary of State for the Home Department to exercise her discretion to grant a Residence Card to a person claiming to be an extended family member?

 

A previous blog post following publication of Sala explores the issues and the basis of the Upper Tribunal’s decision last year: A Judicial Awakening:Extended Family Members Should Never Have Been Allowed to Have Appeal Rights

AfterSala was decided,  affected  extended family members who had appealed negative decisions from the Secretary State prior to   publication of Sala found themselves  in a quandary: the  Tribunal  sought to  send out notices to appellants seeking written justifications as to why  pending  appeals should remain within their jurisdiction: in some cases the Tribunal   refused straight out  to accept jurisdiction leaving individuals without any appeal rights; confusion   reigned  following Sala with  some Entry Clearance Officers refusing  EEA family permits  application from extended family members yet  still providing a right of appeal.  Even when it was reliably  known and publicised  that the  Court of Appeal  had overturned Sala a few weeks ago,  with the  Secretary of  State being represented in  October 2017 proceedings,  the Tribunal  still refused to hear  relevant appeals instead adjourning them  until judgment had been  handed down.

 

Apart from the Upper Tribunal needing to be a little bit more cautious  when seeking to turn EEA law over its  head,  the overturning of  Sala  by the Court of Appeal should also  serve as a lesson to the Secretary of State not to  bend with the wind  and  flow in any direction  however wrong, intending to  grasp at an opportunity  of taking rights away from certain categories of applicants.   Wasn’t  it only last year during proceedings in Sala before the Upper Tribunal that the Secretary of State sided with that  Appellant on the  core issue?   As noted at paragraphs 10, 12, 33, 37, 38, 39, 40, 45 and 63 of the Upper Tribunal’s  judgement in Sala,   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 Court of Appeal however noted in October 2017 that the Secretary of State ‘s  position now  represented  a volte face.  But  what  had changed between  publication of  Sala in September 2016 and the hearing in the Court of Appeal in  October 2017?  The  introduction of the 2016 EEA Regulations of course.  For the Secretary of State to have maintained an  argument in  2017 that extended family members were entitled to a right of appeal, would fly in the face of the  2016 Regulations  which  currently deny them  such appeal rights.

 

Complex legal arguments were advanced in Sala and before the   Court of Appeal. The  Court  of Appeal admitted finding some of the arguments advanced  “difficult to follow”  and  “ failing on a number of points”.   Those advancing arguments on behalf of the Appellant cannot be faulted of course: with the wide-reaching negative effects of Sala,  they had to utilise all seeming relevant legal ammunition  at their disposal in the hope that  some might strike  the desired target with a view to taking down Sala.

 

In formulating their judgement, the Court of Appeal were mindful not to unnecessarily complicate  matters as had the Upper Tribunal in Sala; at first blush their judgment appears lengthy however  what  gives this appearance is the  inclusion of  two  Annexes encompassing  the relevant statutory provisions.

 

Court of Appeal considerations and conclusion:

 

The Appellant, a  Pakistani national had  applied for a residence permit as an “Extended Family Member” (“EFM”) of his uncle, a German national.  The Secretary of State  refused to grant him a Residence card under  Regulation 17(4) of the 2006 Regulations because she did not accept he was an EFM within the meaning of Regulation 8(2). The Appellant appealed to the First-tier Tribunal  who allowed his appeal on 21 October 2015. On 12 October 2016, the Upper Tribunal  ruled that the FTT  lacked jurisdiction to hear the appeal following the decision in Sala.  The appeal then came before the Court of Appeal.

 

Although three Grounds were advanced on the Appellant’s behalf, the focus of the appeal was upon whether “ Sala was wrongly decided, and whether as a matter of domestic statutory construction, or as a matter of EU law, the Appellant had a right of appeal to the FtT and UT”.

 

The Court of Appeal considered and concluded as follows:

 

  • The Court observed that all were agreed that the 2006 Regulations are formidably obscure and badly drafted.

  • Each side submitted that the natural and ordinary meaning of the phrase “concerns … an entitlement” was as suited the outcome sought: the Appellant for an appeal, and the Secretary of State (now) against an appeal. The Court considered that this was the decisive issue in the case.

  • The Court of Appeal observed that the central point in the reasoning of the Upper Tribunal in Sala was that an EEA decision – the trigger for an appeal – concerns “a person’s entitlement to be admitted” or “a person’s entitlement to be issued with a residence card”. In the case of an EFM, because the person acquires no automatic “entitlement” to admission or to a residence card since a discretion on the part of the Secretary of State is retained even if the qualifying or threshold conditions are met, the Upper Tribunal concluded that it followed that an exercise of discretion adverse to the applicant EFM is not an “EEA decision” as defined.

  • Having considered and rejected some submissions, the Court of Appeal stated that a better argument for the Appellant arose from the overall provisions in the Directive, and found an echo in Regulations 17 and 20.  An EFM is characterised under Article 3 as a “beneficiary” of the Directive, and under Article 3.2, “the host member shall, in accordance with its national legislation, facilitate entry and residence for” EFMs.  Article 3 goes on to specify that there must be “an extensive examination of the personal circumstances” and the host member state must “justify any denial of entry or residence” to an EFM. The Court considered that there were not neutral formulations. They were clearly intended to confer on the EFM an advantage in terms of entry and residence over those without such connection with an EEA national. Hence the discretion of the Secretary of State is not unfettered.

  • The Court of Appeal rejected the argument advanced on the Appellant’s behalf which appeared to argue that the Secretary of State had no discretion under Regulation 17(A), once the person established that he or she was an EFM.

  • As accepted on behalf of the Secretary of State, discretion had to be exercised within the constraints laid down in the legislation, and with the provisions of the Directive in mind. In the Court’s view this was reinforced by Article 8 ECHR, and by Article 7 of the Fundamental Charter which is in substance identical. In short, the Directive confers a clear advantage upon an EFM of an EEA national, as against others. EU law favours family integrity, and the exercise of discretion must be exercised in the prescribed way with that advantage, and with Article 7 and the EU principle of proportionality, in mind.

  • The Court also stated that this was reinforced by their decision in Secretary of State for the Home Department v Rahman and Others [2013] QB 249. In that case, the Upper Tribunal made a reference to the CJEU in relation to the rights of “other family members” of a resident EEA national, and the Court considered the provisions of Article 3(2) of the Directive. It was noted that Advocate General Bot in his opinion to the Court recognised that the margin of discretion for the Member State was limited, and must not “have the effect of unjustifiably impeding the exercise by the Union citizen of his right of free movement and residence” (AG, paragraph 69) and must be subject to the right to respect private and family life under Article 7 of the Charter (AG, paragraph 70). In giving their answers to the specific questions referred to them, the Grand Chamber recognised that the Member State had a wide discretion as to implementation, but stated that the “host Member State must ensure that its legislation contains criteria which are consistent with the normal meaning of the term ‘facilitate’” (Judgment, paragraphs 24 and 26).

  • The Court referred to Section 84(1) of the 2002 Act which reads in its relevant part: “84(1) An appeal under Section 82(1) against an immigration decision must be brought on one or more of the following grounds –…(d) that the appellant is … a member of the family of an EEA national and the decision breaches the appellant’s rights under the community Treaties in respect of entry to or residence in the United Kingdom.”

  • The Court of Appeal noted that the Appellant argued that the critical phrase here is “a member of the family”. The Court of Appeal reiterated that both “family member” and “extended family member” carry specific meanings in the context of the legislation. The employment of the term “a member of the family” of an EEA national meant the draftsman avoided the term of art “family member” and adopted a wider phrase, capable of including an EFM as well. The Court of Appeal considered that gave real support to the Appellant’s contention.

  • The Court stated that the principal point at issue was the meaning of the language in the Regulation: is the decision under consideration one which “concerns … an entitlement” to enter and to be granted a residence card.

  • It was noted that the essence of the decision by the Upper Tribunal was that this means an existing entitlement. The Upper Tribunal concluded that the decision by the Secretary of State in relation to a family member is whether that entitlement exists. The decision in relation to an EFM is whether, by the exercise of discretion such entitlement should come into being. In their thinking, that distinction was decisive. The Court of Appel noted that the Secretary of State now adopted that position.

  • The Court considered it intriguing that neither counsel spent any length of time on this critical issue, since it depended on the interpretation of ordinary language. It was also noted that no authority was advanced as to the meaning of this phrase.

  • In the Court’s view not only did the context favour the Appellant’s interpretation but that was the more natural meaning of the words. An “entitlement” is subtly different from a “right”. The natural meaning of the latter is something inherent and existing. The natural meaning of an “entitlement” is a benefit which is obtained or granted. Moreover, a decision which “concerns” an entitlement appeared to the Court naturally to include a decision whether to grant such an entitlement. The Court considered that this was precisely what the Secretary of State must do in such a case as this.

  • Whilst admitting that this formed no part of the Court reasoning in reaching their conclusion, it appeared to the Court that an appeal before a Tribunal is a preferable procedure in this context to judicial review. It was viewed that the tool of judicial review has proved to be flexible, capable of being shaped to different levels of intensity and intrusive enquiry, depending on the matter in hand. However, the hearing of an appeal before a tribunal is probably somewhat better as a procedure for the intensive review of the facts required by Article 3(2) of the Directive and required on the part of the Secretary of State by Regulation 17(5).

  • The Court stated that it is a cornerstone of the rule of law that discretionary powers conferred on Ministers of the Crown are not to be used arbitrarily and that, if an exercise of power is exercised otherwise than in accordance with the correct legal principles, it will be quashed by the courts. 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.

  •  The Court noted what Lord Halsbury LC said in Sharpe v Wakefield Justices [1891] A.C. 173, 179:- “… and “discretion” means when it is said that something is to be done within the discretion of the authorities, that that something is to be done according to the rules of reason and justice, not according to private opinion …; according to law, and not humour…”

  •  The Court of Appeal stated that 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.

  •  The Court of Appeal concluded that , the Secretary of State’s decision to refuse Mr Khan a residence card, was an EEA decision and can therefore be appealed in the ordinary way to the First Tier Tribunal.

 

 

The Upper Tribunal decision in Sala had a snowball effect:

 

Following the Upper Tribunal in Sala, the Government very tactfully and quickly grasped an  opportunity. They  shunted away  the previous  2006 Regulations and brought about the  amended 2016 EEA Regulations with astonishing speed.  The Explanatory  Memorandum to the 2016 Regulations  states  “The 2016 Regulations in large part consolidate and clarify the provisions under the 2006 Regulations, modernising the language used and simplifying terms where possible in line with current drafting practice”. In-built   within the new Regulations  however are measures intended to make life more difficult/uncomfortable for EEA nationals residing in the UK  also  enabling expedient removal or deportation   from the UK.

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It might be that some legislative  changes relevant to EEA citizens  were already in the pipeline prior to Sala: in that case then the very decision of the Upper Tribunal in seeking themselves without any prompting from the Secretary of State,  to dismantle rights   intended for a certain  group  of applicants, very likely  expedited the bringing about of   the 2016 Regulations.   As noted by the Court of Appeal in Khan : “For approximately ten years before the decision in Sala, all parties considered, and proceeded on the basis that, there was a right of appeal to the FtT (and onward) when an EFM was refused residence. Such an appeal was pursued in Sala before the FtT with no submissions to the contrary from either side. When the matter came before the UT, the Tribunal raised the jurisdiction issue of their own motion. Both parties argued for the existence of the appellate jurisdiction”.

 

The Upper Tribunal decision in Sala in any case had a snowball effect. The Explanatory  Memorandum  to the 2016 Regulations  also states: “7.12 The definition of “EEA decision” in regulation 2(1) of the 2016 Regulations largely replicates the definition in the 2006 Regulations. However, it makes it clear that an EEA decision does not include a decision to refuse to issue to an extended family member of an EEA national an EEA family permit, registration certificate or residence card as found in the judgment of the Upper Tribunal (Immigration and Asylum Chamber) in Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC)”.

 

The decision in Sala therefore very likely gave the impetus for the  speedy  drafting  and publishing of  the 2016 EEA Regulations.   A previous blog post  of less than a year ago EEA residence documentation applications to withstand validity hurdle: a calculated hindrance or delaying tactic to confirming residence rights? mused as follows:

 

“(1) THE SALA  EFFECT 

 

Following   the unfortunate  outcome in  the  case of Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC), in September 2016, the Government  evidently gathered from that case that they  had missed  several  legislative opportunities from since 2000: i.e, an opportunity  not to  make  the process easier  but   to draft new buttressed  legislation intended to make it clear, among other matters, that for EEA nationals and family member,  they are  now the “new undesirables”………………

 

Sala was notified on 19 September 2016. On 22 September 2016, updated  Home Office Policy Guidance was  published: Extended family members of European Economic Area (EEA) nationals – v3.0  and this provided that  the Guidance changes  had been prompted by the need to   reflect the judgement regarding appeal rights for extended family members: “If you refuse an application from an extended family member for residency documentation such as a residence card, that decision does not attract a right of appeal, as it is not an ’EEA decision’ as defined in regulation 2 of the EEA regulations”.

 

Barely two months later, on 3 November 2016, the new 2016 EEA Regulations  were published  to come  fully into effect on 1 February 2017 and provide  as follows:

 

“General interpretation

 

2.—(1) In these Regulations—

……

EEA decision” means a decision under these Regulations that concerns—

(a)a person’s entitlement to be admitted to the United Kingdom;

(b)a person’s entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card (but does not include a decision that an application for the above documentation is invalid);

 

(c)a person’s removal from the United Kingdom; or

 

(d)the cancellation, under regulation 25, of a person’s right to reside in the United Kingdom,

 

but does not include a decision to refuse to issue a document under regulation 12(4) (issue of an EEA family permit to an extended family member), 17(5) (issue of a registration certificate to an extended family member) or 18(4) (issue of a residence card to an extended family member), a decision to reject an application under regulation 26(4) (misuse of a right to reside: material change of circumstances), or any decisions under regulation 33 (human rights considerations and interim orders to suspend removal) or 41 (temporary admission to submit case in person)”.

 

Khan is the second decision in the Court of Appeal  via which  that Court has this year overturned a judgment  concerning EEA matters emanating from  the Upper Tribunal.  A blog post Dangers of judicial over-thinking of EEA Law: Court of Appeal overturns flawed Upper Tribunal decision on proxy marriages,   explores the issues  raised in Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178  which overturned Kareem [2014] UKUT 24 and TA [2014] UKUT 316 (IAC).  The effect of Kareem was to exclude a spouse of an EU national who had concluded  a  proxy marriage  from qualifying  as a family member: such marriages were not valid  unless the marriage was recognised in the EEA national’s home State. The Court of Appeal however considered that the reasoning by which the Upper Tribunal in Kareem arrived at its conclusions was flawed.  The Court of Appeal decided that the Upper Tribunal in Awuku erred in concluding that in the absence of evidence that German law recognizes a Ghanaian marriage by proxy as valid, the marriage would not be recognized in the United Kingdom.

 

It is therefore with caution that the Upper Tribunal must proceed when seeking to “interpret” the law  on EEA ground where the Secretary of  State has herself not  taken  issue more so where as in Sala, the Secretary  of State  was as it were singing from the same hymn  book as the Appellant.

 

Conclusion

 

Appeals lodged under the 2006  EEA  Regulations which were adjourned,  including those adjourned   from last month following publicizing of the Court of Appeal decision in Khan, can now proceed to be relisted and  heard in the First Tier  Tribunal.

 

There are still some cases still retained within the appeal system  in relation to which  the Tribunal sent out notices following Sala  requiring justification  as to why the FTT retained jurisdiction: the Tribunal is yet to indicate their position on those appeals and such appeals  too should be listed for hearings.

 

Some appellants had their appeals rejected for want of jurisdiction in light of Sala. Rule 7 of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 provides for reinstatement of an appeal following  striking out of an appeal for non-payment of a fee. Where an appeal has been so struck out , the appeal may be reinstated if the appellant applies to the FTT  to have the appeal reinstated. An application for reinstatement  must however  be made in writing and received by the Tribunal within 14 days, or if the appellant is outside the United Kingdom within 28 days, of the date on which the Tribunal sent notification of the striking out to the appellant.

 

Where however it is not possible to ask for the appeal to be reinstated having regard to the specific formulation  in Rule 7, detailed grounds of appeal can be submitted or re-submitted,  relying upon Rule 20 including  an application for  an extension of time and the reason(s) why the notice of appeal was not provided in time.

 

The bottom line however  really is  that an injustice was visited upon  several individuals as a result of Sala and  some reaction from the Home office or Tribunal should be forthcoming in writing to  cover the position of persons who had lodged appeals timely but were wrongly ejected out of the system.

 

Further, as regards those whose appeals were  rejected by the Tribunal outright as invalid following Sala, although new applications can be made to the Home Office by extended family members, since the 2016 Regulations  will apply  at the point of refusal,  the same problem persists- affected applicants  will not  obtain a right of appeal.

 

The Court of Appeal judgment in Khan does not deal with the  2016 regulations.  The new 2016  regulations make it clear that  an EEA decision does not include a decision to refuse to issue a document under regulation 12(4) (issue of an EEA family permit to an extended family member), 17(5) (issue of a registration certificate to an extended family member) or 18(4) (issue of a residence card to an extended family member).

 

The current Home Office Guidance policy published on 4 August 2017 Extended family members of EEA nationals states, “ Appeal rights Extended family members applying for an EEA family permit, a residence card or a registration certificate do not have a right of appeal against the refusal of such a document. This is in line with regulation 2 of the 2016 regulations which defines an ‘EEA decision’ for the purposes of the regulations.”

 

As one legal battle falls away, another one of a similar nature still stands as a stumbling  block affecting  extended family members  in relation to  rights of appeal by  reference to the new Regulations. The first  line of  legal attack  from September 2016  was to strike down Sala– this has been done.  Having regard to  the operation in practice  of  some aspects  of the  2016 Regulations, these provisions were clearly made to be  chipped at away  via legal challenges.  The questions however in relation to the lack of  rights of appeal as they affect  extended family members under the 2016 Regulations  is if, how and when  justice can be restored – perhaps this can start in the Upper Tribunal itself  with a view to  seeking to right a wrong they arguably contributed to bringing  about.

 

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