Appeal rights for extended family members

On 12 October 2017 the Court of Appeal heard arguments in the challenge to the decision in the case of Sala (EFMs: Right of Appeal: Albania) [2016] UKUT 411 (IAC) which had found that there was no right of appeal for extended family members where a decision had been made to refuse a residence card.

This decision had a siesmic effect in both depriving many appellants the right of an appeal in circumstances where it had long been thought to exist and also it was an instigator for the Government to introduce the 2016 Regulations which formally deprived extended family members of a right of appeal.

Arguments were heard on these issues in the case of MK (Pakistan) v. Secretary for the Home Department (C9/2016/4413).  Although there were a number of arguments including those on procedural equivalence and whether or not the decision was compatible with the Citizens Directive the Court only heard arguments on statutory interpretation of the 2006 Regulations.  In effect, on a proper reading of the 2006 Regulations, did they allow the right of appeal to extended family members?

Although the Court has not yet issued its determination it has verbally indicated that in its view the Upper Tribunal erred in its interpretation of the 2006 Regulations which in their view did entitle extended family members the right of appeal.  As a result the appeal was allowed on that basis with a written judgement to follow.  The Government has not yet indicated whether or not it intends to appeal to the Supreme Court.

The Way Forward

Because of the approach of the Court the decision only directly affects decisions made under the 2006 Regulations to refuse the right of appeal.  The position under the new 2016 Regulations is still problematic. 

On the positive side those who lodged an appeal against decisions made on or before the 31^st of January 2017 can continue to enjoy appeal rights.

Those who had decisions prior to on the 31^st of January 2017 and did not appeal  may consider lodging an out of time appeal seeking an extension of time on the basis that Sala was wrongly decided.  It may be, however, that the Tribunal may wish to see the written judgement before making a decision on a late appeal.  It would seem that this would be the best approach as any new decision in these cases would be made in terms of the 2016 Regulations which at the moment do not provide for any right of appeal.

Appeal under the 2016 Regulations

Clearly, the Government will need to consider its position particularly as they originally opposed the position of the Court in Sala and then opportunistically jumped on the bandwagon of an erroneous decision by using that decision as a springboard to make the changes now contained in the 2016 Regulations.

If they do not reconsider their position and change the position back to that under the 2006 Regulations then the issues that were not considered by the Court of Appeal may need to be considered again.

In this respect there is already a reference to the European Court in the case of Banger (Unmarried partner of a British national) v. the Secretary of State for the Home Department [2017] UKUT 125 (IAC) on the issue of whether the Citizens Directive precludes a rule of national law which denies a right of appeal against a decision to refuse to issue a residence card to an extended family member. 

This is clearly a complex and unresolved issue with a number of options for those who have been affected by the judgement.

Because of this the solicitors at Drummond Miller are available and happy to provide advice on the best way forward for those affected.