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.


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