In an important case to protect the rights of EU nationals and their family members in the UK, the Court of Appeal has overturned the Sala (EFMs: Right of Appeal)  UKUT 411 decision in relation to the Immigration (EEA) Regulations 2006.
The facts in Khan
Mr Khan is a national of Pakistan and applied for a Residence Card as the extended family member of his uncle, an EEA national. The Home Office refused the application on the basis that there was not evidence that he was sufficiently dependent or that his EEA National sponsor was ‘exercising treaty rights’. The First Tier Tribunal allowed the appeal, and the Home Office appealed to the Upper Tribunal, where it was concluded that there was no jurisdiction to hear the appeal, due to the effect of Sala.
Findings of the Court
Lord Justice Irwin delivered the judgment of the Court of Appeal, stating that:
- the definition of ‘EEA decision’ in Regulation 2 of the 2006 Regulations being one that “concerns... an entitlement” was ‘formidably obscure and badly drafted’ at paragraph 27;
- The ‘discretion of the Secretary of State is not unfettered’ in relation to decisions relating to an EFM - the examination and justifications for refusals set out in Article 3 of the Citizens’ Directive ‘are not neutral formulations. They are clearly intended to confer on the EFM an advantage in terms of entry and residence over those without such connection with an EEA national’ at paragraph 34;
- ‘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.’ A decision concerning an entitlement includes ‘a decision whether to grant such an entitlement. That is precisely what the Secretary of State must do in such a case as this.' at paragraph 45;
- Importantly: ‘an appeal before a Tribunal is a preferable procedure in this context to judicial review’ at paragraph 46.
Lord Justice Longmore agreed with the judgment of Lord Justice Irwin, adding 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’ at paragraph 48.
This will be welcome news for Appellants whose appeals under the 2006 Regulations have been delayed, but there will be many whose appeals were dismissed for want of jurisdiction, and it is unclear at present whether the Tribunal will allow for ‘out of time’ appeals, or reinstate appeals.
This appeal has no impact on the subsequent EEA Regulations enacted in 2016, which incorporate Sala in the definition of EEA decision:
“EEA decision” means a decision under these Regulations that concerns—
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)...
Refusal decisions under the new Regulations therefore still do not attract the right of appeal, but as it is only the UK’s transposition of the Citizens’ Directive, rather than the substance of rights under EU law which have been changed, so challenges ought to be able to overturn this, too.
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