EXTENDED FAMILY MEMBERS OF EU NATIONALS 1

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1 EXTENDED FAMILY MEMBERS OF EU NATIONALS 1 Declan O Callaghan Landmark Chambers 2 Inconceivable!" "You keep using that word. I do not think it means what you think it means. William Goldman, The Princess Bride 1. As lawyers huddle together in tight groups, their plumage of dark suits and darker circles under their eyes initially make them indistinguishable but you can soon establish their social groupings through their utterances: a hushed discussion of Jogee as they dissect joint enterprise identifies those whose lives are in the criminal courts; Mitchell is accompanied with warning signs of trepidation for those of the civil variety; whilst the formerly endangered employment lawyer is now seen more abundantly and cooing UNISON to all who pass. As for immigration lawyers, usually identified by dominant utterances of Robinson and ZH (Tanzania) or shrieks of Points Based System are now being accompanied by an all too common raising of the head to the sky when hearing a plaintive Sala float by on the wind. Sala 2. As to why what was believed to be true to all for 10 years was found to be untrue (and has now been recognised as a universal truth by the Court of Appeal) one must give initial consideration to a man whose name is now common currency for immigration lawyers in this country with the judgment he spawned presently being examined by the Supreme Court and the Court of Appeal. 3. That man is Mr. Shemsi Sala. I can confirm that he is a very pleasant man who hails from Albania and like many others initially identified the United Kingdom as a place of 1 This note was initially a talk presented at the Immigration Law 2017 Conference on EU Free Movement organised by MBL Seminars and held in London on Monday, 30 October It has been amended to address the recent Court of Appeal judgment of Khan v. Secretary of State for the Home Department [2017] EWCA Civ Fellow speakers at the event were: Barry O Leary, Wesley Gryk Solicitors LLP; Graham Denholm, Landmark Chambers; Malini Skandachanmugarasan, Laura Devine Solicitors; Peter Jorro, Garden Court Chambers and Julia Smyth, Temple Garden Chambers. 2 Counsel for Mr. Sala before the Upper Tribunal on 7 June 2016, instructed by Kilby Jones Solicitors, Victoria, London: Sala (EFMs: Right of Appeal) [2016] UKUT (IAC); [2017] Imm. A.R

2 safety then as one where he would be rewarded for hard work. Like many immigrants over the centuries, the United Kingdom became his chosen home. 4. Over time he met the person with whom he wishes to spend his life, Ms. Livia Valasekova. The English language may describe their circumstances as a loving relationship between two people committed to each other. Because his partner is a citizen of Slovakia, domestic law uses a different term to loving relationship when considering whether Mr. Sala can rely upon his partner s exercise of EU Treaty rights to remain in this country - the more functional durable relationship. 5. Consequent to his belief that he was in a durable relationship with his partner, Mr. Sala applied on 3 May 2013 for a residence card as the extended family member (EFM) of an EEA national under regulation 8(5) of the Immigration (European Economic Area) Regulations Confident that the genuineness of relationship was sufficient, the couple naturally assumed that Mr. Sala would secure a residence card and they could continue with their lives in this country as productive members of their community. 6. Five months later, on 10 October 2013, the Home Office refused the application. The decision-maker accepted that the relationship was genuine, but not that it was durable. In addition, it was concluded that as Mr. Sala had entered the United Kingdom illegally he had not provided enough evidence to allow us to exercise discretion in your favour. The latter was a reminder that unlike family members seeking a residence card, EFMs are required to establish more than they meet the stated requirements under the 2006 Regulations. The ultimate decision by the Home Office to issue a residence card to an EFM requires the exercising of discretion. 7. The notice of refusal to issue a residence card stated that Mr. Sala had a right of appeal against the refusal under section 82 of the Nationality, Immigration and Asylum Act 2002 ( the 2002 Act ) and regulation 26 of the Immigration (European Economic Area) Regulations 2006 ( the 2006 Regulations ). 8. Appropriately advised, Mr. Sala exercised a right of appeal to to the First-tier Tribunal (Immigration and Asylum Chamber). Mr. Sala attended his hearing before JFTT Knowles along with Ms. Valasekova. At this time they had welcomed their child into the world, becoming loving parents. 9. By way of a determination dated 26 June 2014, Judge Knowles accepted that the couple were in a durable relationship and therefore Mr. Sala was to be considered to be an EFM under regulation 8(5) of the 2006 Regulations. The appeal was refused because though the Judge determined that the Secretary of State s consideration as to the exercise of her discretion was not consistent with the requirement in regulation 17(5) that there be an extensive examination of the personal circumstances of the appellant, the Judge proceeded to consider Mr. Sala s circumstances and concluded that the discretion would not be exercised differently. The First-tier Tribunal therefore decided that there was no basis upon which the Secretary of State would exercise discretion in favour because of his illegal entry into the United Kingdom. 10. Somewhat surprisingly in light of the accepted facts and with the First-tier Tribunal having determined that the Home Office simply could not in the circumstances favourably exercise discretion in Mr. Sala s favour, the First-tier Tribunal refused permission to appeal and it was left to the Upper Tribunal (UTJ Perkins) to grant permission on 16 October 2014 as it was arguable that the judge s approach to the 2

3 exercise of discretion is flawed. By now some 17 months had passed since the original application. 11. A sense of the unusual arose at the initial hearing of the appeal before the Upper Tribunal on 5 February Mr. Ockelton, Vice-President, and Upper Tribunal Judge Grubb identified two issues with the parties representatives: i) whether Mr. Sala enjoyed a right of appeal to the First-tier Tribunal under the 2006 Regulations and ii) if he did, was the judge entitled to exercise discretion under regulation 17(4) of the 2006 Regulations himself. 12. The hearing was adjourned to 7 July 2015 where both representatives submitted to the Upper Tribunal that an EFM did enjoy a right of appeal against a refusal to issue a residence card. As for the issue of discretion, the experienced Mr. Deller on behalf of the Home Office conceded that the purported exercise of discretion against Mr. Sala was unlawful. He accepted that it was wrong of the Home Office to state that Mr. Sala had not provided enough evidence to allow an exercise of the discretion and then to exercise discretion against him merely on the basis that he had entered the United Kingdom illegally. Consequently, with the Upper Tribunal reserving its determination at the conclusion of the hearing Mr. Sala was aware that the Home Office was willing to reconsider the exercise of its discretion, that it accepted that his having entered the country unlawfully was an insufficient basis upon which to make an adverse exercise of discretion and that it would be mindful as to both his partner continued exercise EU Treaty rights and that they had now a child. 13. He was not aware that there would be a further 13 months to pass before the Upper Tribunal finally made its decision. Sala - Argument before the Upper Tribunal 14. In retrospect, the next step was a clear signpost as to where the Upper Tribunal was travelling. With the representatives having been in unison as to the right of appeal and with the Home Office confirming that it was her intention that the Regulation provide EFMs a right of appeal, the Upper Tribunal concluded that it would be of benefit to have argument seeking to put forward the contrary case to that of the parties, namely that no right of appeal existed. As a consequence, a request was made by the Upper Tribunal to the Attorney General for the appointment of counsel to act as a friend to the court to present those arguments 4 and so the hearing was reconvened on 7 June 2016 some 11 months after the previous hearing and over 3 years after the application for a residence card was initially made. 15. Regulation 17 of the 2006 Regulations provides for the issue of a residence card to a non-eea national family member by way of regulations 17(1) - (3) and to an extended family member of an EEA national by way of regulations 17(4) and (5) with regulation 17(4) providing: 3 Mr. Philippe Bonavero, Counsel, represented Mr. Sala at the first two hearings before the Upper Tribunal. 4 Ms. Samantha Broadfoot (now QC), Landmark Chambers, acted as Friend to the Court. 3

4 The Secretary of State may issue a residence card to an extended family member not falling within Regulation 7(3) who is not an EEA national on application if (a) (b) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under Regulation 15; and in all the circumstances it appears to the Secretary of State appropriate to issue the residence card. 16. Regulation 17(4)(b) establishes the exercise of discretion in the decision-making process. In exercising that discretion, regulation 17(5) provides that: Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security. 17. Once a residence card is issued, the 2006 Regulations place EFMs in the same position as family members provided that they continue to satisfy the conditions in regulation 8 which results in their being EFMs and their documentation remains valid and has not been revoked. Thereafter, an EFM enjoys the same right to admission and residence under the 2006 Regulations, as does a family member. 18. As for the existence of an appeal Regulation 26(1) of the 2006 Regulations sets out a general right of appeal against an EEA decision : Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision. 19. An EEA decision is defined by regulation 2(1): 'EEA decision' means a decision under these Regulations that concerns (a) (b) a person's entitlement to be issued with or have renewed, or not to have revoked, a residence card [Emphasis added] 20. The Upper Tribunal identified that a consequence of these provisions, an appellant s right of appeal rests upon their being: (1) a decision made under the EEA Regulations 2006; and (2) that decision concerns a person s entitlement to be issued with a residence card. It would prove that the words concerns and entitlement would be subject to forensic examination. 21. On behalf of Mr. Sala, and supported by the Secretary of State, it was asserted that a decision under regulation 17(4) involves two steps from which an individual s entitlement to the residence card flowed: Step 1 is a factual one requiring the individual to establish that he is an EFM of a qualified person or an EEA national with a permanent right of residence. 4

5 Having established that fact; Step 2 requires the Secretary of State to exercise discretion whether to issue a residence card. If the Secretary of State decides to exercise discretion in the individual s favour then the individual has a right or entitlement to that residence card. 22. Therefore, where the Secretary of State makes an adverse decision in respect of an individual at step 1 or step 2 that is nevertheless a decision that concerns an individual s eventual entitlement to a residence card. The word concerns enjoys a broad definition meaning is relevant or important to or relates to or is about the entitlement to the residence card. When the Secretary of State refuses an application for a residence card that decision under the 2006 Regulations falls within the ordinary meaning of the word concerns and the potential entitlement to the residence card. 23. Strikingly, the Friend to the Court confirmed during her written submission that there was logic to the submissions that the two-step decision-making process led to entitlement to a residence card and that a negative decision at either of those steps concerns that entitlement. Sala Upper Tribunal decision 24. The Upper Tribunal understood that its decision ran contrary to the understanding not only of the Secretary of State, lawyers and appellants but also of the courts up to that date, [43]: We have not found this an easy issue to determine. 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 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 It then proceeded to determine that no right of appeal against an adverse residence card decision existed for EFMs under the 2006 Regulations for whereas family members derived their rights of admission and residence directly from EU law, the rights of EFMs derived from domestic law and that established discretion on the part of the Secretary of State to issue a residence card following an extensive examination of personal circumstances. The only entitlement that an EFM enjoyed in the decisionmaking process was that such discretion was to be exercised lawfully and in accordance with the Citizens Directive. 26. The Upper Tribunal held that there was a jurisprudential distinction, well recognised in public law, between the exercise of discretion and the carrying out of a duty. The provisions dealing with the issue of residence cards under the Regulations reflected such distinction. The decision-making process itself did not entail a right or entitlement to a residence card; nor was there any basis for interpreting the definition of an EEA decision in regulation 2(1)(b) so as to extend to potential entitlement. 5

6 27. At its heart the Upper Tribunal determined that the natural and ordinary meaning of EEA decision in regulation 2(1)(b) did not include a decision to refuse a residence card to an EFM under regulation 17(4) despite this having been the intention of the Secretary of State during the drafting stage of the Regulations. The Upper Tribunal concentrated upon entitlement when seeking to interpret the provision, rather than concerns. 28. And that was that for a while. 29. Many may have expected this issue to be subjected to the close scrutiny of higher courts but Mr. Sala was not in a position to accede to the wishes of fellow EFMs. By the date the Upper Tribunal handed down judgment on 19 August 2016 he had been seeking a residence card for over 3 years during which time he became a father and his partner was holding down two jobs for the family. The First-tier Tribunal had accepted some 26 months previously that he was in a durable relationship and the Home Office had since accepted that it had erred in relying upon his initial entry into this country when adversely exercising discretion. He had two option: accede to the Home Office s offer of reconsideration or wait a further 12 or months for a higher court to determine the true legal position. He personally gained nothing from the latter course of action, save potentially being subject to a significant costs award if unsuccessful and in truth there was only one option available to him. He did not appeal. Issues arising 30. Two underlying issues are quickly discernible in the matter of Sala to date: i) the 2006 Regulations were meant to transpose the Citizens Directive 5 and ii) as confirmed to the Upper Tribunal the Secretary of State intended by way of the 2006 Regulations for EFMs to enjoy an in-country right of appeal rather than be required to seek to challenge decisions by way of judicial review or out of country. 31. As to transposition, section 2(2) of The European Communities Act 1972 provides for secondary legislation such as orders, rules or regulations to be adopted to implement any EU obligations of the United Kingdom including the implementation of directives. 32. The Citizens Directive does not provide for a specific remedy to be available in national courts in respect of infringement, though national autonomy as regards the enforcement of EU legal rights is subject to general principles as to adequacy of remedy including that it be effective. National legal systems provide a variety of remedies and in the United Kingdom the domestic procedure provides for facts-based appeal or judicial review. 33. Before the Upper Tribunal, the Secretary of State contended that in R. (on the application of Bilal Ahmed) v. Secretary of State for the Home Department [2016] EWCA Civ 303, [2016] Imm. A.R. 869 the Court of Appeal held that a person who was challenging a decision that he had entered a marriage of convenience and asserted that 5 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States 6

7 he was a family member under article 2(2) of the Citizens Directive did not benefit from article 15 of the Directive (procedural safeguards), nor articles 30 and 31 (notification of decision and procedural safeguards). A fortiori, a person seeking to be recognised as an extended family member does not benefit from those provisions either: see also R. (on the application of Decker) v. Secretary of State for the Home Department & the Upper Tribunal [2014] EWHC 354 (Admin) and Rose (Automatic deportation Exception 3) Jamaica [2011] UKUT (IAC). 34. Consequently, the Secretary of State s position before the Upper Tribunal was that under the Citizens Directive a person seeking to establish status as an extended family member is not entitled under EU law to a full examination of the legality of the decision, as well as of the fact and circumstances on which the [decision] is based as established by article 31(3) of the Directive. 35. Therefore, judicial review on public law grounds is identified by the Secretary of State to be a permissible remedy for an EFM subject to an adverse residence card decision. Public law grounds including reasonableness and irrationality can be used as well as proportionality in a EU law context. Lord Reed confirmed in R. (on the application of Lumsdon) v. Legal Services Board [2015] UKSC 41; [2016] AC 697 there is no such thing as one-stop proportionality. It varies between ECHR and EU law and the test of EU proportionality then vary according to the nature of the EU issue in play. 36. To many subject to such an adverse decision, the exercise of an appeal right before the First-tier Tribunal, permitting an independent judge to assume the role of decisionmaker as to the issue of durable relationship may be preferable to a public law judicial review challenge. 37. It was the Secretary of State s case before the Upper Tribunal in Sala that she exercised discretion favourably so as to place EFMs within the appeal regime with regard to adverse residence card decisions. She was not required to do so, but exercised discretion to provide so. In written submissions to the Upper Tribunal she identified the benefit of the appeal regime in EFM matters being that whether or not a person qualifies to be treated as a family member will often require resolution of a question of fact, for example whether the parties are in a durable relationship or whether there is dependency. On a statutory appeal, the Tribunal benefits from: (a) hearing oral evidence; (b) receiving material which was not necessarily before the decision-maker: section 85(4) Nationality, Immigration and Asylum Act 2002 Act (amended since by the Immigration Act 2014, but not materially). In a public law challenge, the Court would, of course, ordinarily be confined to considering the material before the decision-maker, and would not have the benefit of oral evidence. 38. Intention alone is not the decisive answer when interpreting statute or secondary legislation. It is accepted that apart from any express delegation by an Act to named authorities, Parliament is taken to delegate to the court the ultimate working out of the meaning intended by an enactment The Tribunal in Sala determined that the (fallible) drafter - and so Parliament - did not adopt the intention of the Secretary of State by the use of the term enactment and in so doing rejected the logical argument of the Respondent and appellant that the use 6 An enactment for the purposes of interpretation is a single legal proposition whether laid down by an Act, a prerogative instrument or an item of delegated legislation. 7

8 of concerns softened the subsequent use of the word enactment at Regulation 2(1) of the 2006 Regulations. 40. An enactment is not to be construed as if it were a piece of ordinary prose but rather as a legislative pronouncement. It has the legal meaning taken to be that intended by the legislator so its legal meaning corresponds to the legislative intention. 7 Accordingly, an interpreter of an enactment needs to bring an informed mind to the task and it is a rule of law that they must infer that the legislator, when settling its wording, intended it be given a fully informed, rather than a purely literal, interpretation though the two usually produce the same result. 41. As composer of the text the drafter has an intention as to its meaning and the drafter s work is in carrying out broad government policy agreed by Ministers. The intention of the draft should correspond to that of the legislators and a judge should assume this is so. 8 A court will have to determine that a fallible drafter failed to carry out the intention as agreed by a Minister. In so doing, it will have to determine that the plain meaning of the rule is that which was intended. Lord Reid expressed the plain meaning rule in Pinner v. Everett [1969] 1 WLR 1266, at 1273 as: In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute. It is only when that meaning leads to some result which cannot reasonably be supported to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrase. 42. On behalf of Mr. Sala is was asserted that Regulation 2(1) was to be read as: 'EEA decision' means a decision under these Regulations that concerns [relates to] (b) a person's entitlement to be issued with or have renewed, or not to have revoked, a residence card 43. The Upper Tribunal s concentration on entitlement resulted in there being insufficient focus on the word concerns. The decision did not have to be one specifically related to entitlement but could incorporate the 2 steps identified in EFM applications as the stage 1 decision relates to an applicant s entitlement to a residence card. Post-Sala 44. Following the decision of Sala Upper Tribunal Judges as well as Judges of the First-tier Tribunal initially adopted inconsistent approaches with some seeking to distinguish Sala. However, when it became clear that Mr. Sala was not seeking to appeal the Firsttier Tribunal veered towards identifying that appeals lacked jurisdiction and letters were sent out to appellants and their representatives requesting that submissions be filed as to why their appeals should not be struck out. Invariably, after a period of time they were. 7 Bennion on Statutory Interpretation, 6 th ed, Part VIII, code s163, pg ibid, Part VIII, code s165,

9 45. Some Judges of the First-tier Tribunal responded to submissions that the Upper Tribunal s decision in Sala was not the correct identification of law by responding that they considered the decision to be binding. This is incorrect for though the decision was reported it was not a Starred decision. The Practice Directions detail at paragraph 12 that Starred decisions are to be treated as authoritative and so in the absence of a starred case the common law doctrine of judicial precedent shall not apply and the decisions of one Constitution of the Chamber do not as a matter of law bind later Constitutions. It remains persuasive but not authoritative, though many Judge of the Upper Tribunal will be mindful as to the principle of judicial comity. 46. A number of appellants proceeded to exercise a further right of appeal to the Upper Tribunal against the adverse preliminary decision as the Upper Tribunal may consider the issue of jurisdiction by way of statutory appeal rather than by way of judicial review proceedings: BJ (Singh explained) Sri Lanka [2016] UKUT (IAC). 47. Some of these appeals are outstanding. Others were refused on the ground that the First-tier Tribunal correctly identified that it enjoyed no jurisdiction to hear an appeal. 48. In other appeals, brought by the Secretary of State against decisions of the First-tier Tribunal, the Secretary of State was regularly granted permission to rely upon the decision in Sala so as to establish a material error of law on the ground of jurisdiction. Immigration (European Economic Area) Regulations The 2016 Regulations sought to consolidate the 2006 Regulations and to give effect to certain judgments of the CJEU and address issues concerning the practical application of the Citizens Directive within the United Kingdom. 50. 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 Sala. 51. The legislative intention of the 2016 Regulations was therefore not to provide a right of appeal to EFMs, whose remedy will be to seek judicial review before the Upper Tribunal. 52. The Regulation applies to decisions made on or after 1 February Banger 53. Perhaps mindful of the change in the Secretary of State s position under the 2016 Regulations, the question of appeal rights for EFMs was made subject to a preliminary reference by the then UT (IAC) President (McCloskey J) in Banger (Unmarried Partner of 9

10 British National) [2017] UKUT 125 9, now Case C-89/17 Banger v. Secretary of State for the Home Department. 54. Though a matter primarily concerned with the application of the Surinder Singh judgment, at its heart is the position of a non-union unmarried partner of an EEA national (in this case British) exercising Treaty rights. 55. One of the four questions referred to the CJEU specifically concerned the substance of a right of appeal to an independent judiciary: Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive? Supreme Court circles around Sala but does not bite (yet) 56. A potential reconsideration of Sala unexpectedly arose before the Supreme Court. 57. In SM (Algeria) v. Entry Clearance Officer UKSC 2015/0243. Mr. and Mrs. M are French nationals exercising free movement rights. In 2011, whilst in Algeria, they became legal guardians of SM under the Kafalah system (Islamic equivalent to adoption). SM later applied for entry clearance to enter the United Kingdom as a family member of an EEA national exercising free movement rights under the 2006 Regulations. The issue for the Supreme Court is whether the appellant is a direct descendant or extended family member within the meanings of regulations 7 and 8 of the 2006 Regulations. 58. At the hearing on 23 March 2017, both the Appellant and the Respondent invited the Panel (Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, and Lord Hughes) to determine whether Sala had been correctly determined. The Panel reserved their position on 23 March 2017, subject to written submissions from both parties, leaving open the possibility of a further hearing. The Court subsequently granted permission to the Coram Children s Legal Centre to formally intervene on point. The AIRE Centre also sought to intervene. MK (Pakistan) 59. The Court of Appeal decided to consider the lawfulness, or otherwise, of the decision of Sala in Muhammad Yasir Khan. 10 Though the issue had been raised - late in the day - before the Supreme Court in SM (Algeria), it may well be thought appropriate that the Court of Appeal be granted the opportunity to consider an issue of law arising from the Upper Tribunal first without the issue leap-frogging to the Supreme Court. 60. It should be noted that by way of case management, the Court identified the issues it wanted submissions upon: the interpretation of the 2006 Regulations was to take place 9 Ms. Banger s legal representatives are Mr. Anthony Metzer QC and Ms. Sanaz Saifolahi, instructed by Breytenbachs Immigration Consultants 10 Mr. Ramby de Mello and Mr. Rajiv Sharma, instructed by Stella Maris Solicitors, represented Mr. Khan before the Court of Appeal. 10

11 in isolation before consideration was to be given to issues arising under the Citizens Directive and the EU Treaty. 61. The appellants in MK (Pakistan) adopted the same argument as advanced on behalf of Mr. Sala; the 2006 Regulations provide a right of appeal against an adverse EEA decisions and adverse decisions with regard to a residence card application by an EFM is an EEA decision for the purpose of appeal rights. 62. By this time, the Secretary of State had undertaken a volte-face and was seeking to argue that the decision in Sala was correct. I observe that with regard to statutory interpretation, the implication of the volte-face was that despite the Minister s intention, the draftsman of the Regulation was fallible and failed to convey the intention that EFMs were to enjoy a right of appeal. The Court sought an explanation as to why the Home Secretary had changed her position following the Upper Tribunal decision but as it was a matter of policy no explanation was forthcoming. 63. Having heard argument on 12 October 2017, the Court of Appeal (Master of the Rolls, Longmore, Irwin LJJ) reserved judgment with an indication that the 2006 Regulations does provide for a right of appeal and that it would allow the appeal on that ground. 64. The Court handed down judgment on 9 November 2017 with lead judgment from Irwin L.J.: [2017] EWCA Civ Observing that all before the Court agreed that the 2006 Regulations were formidably obscure and badly drafted the Court concentrated on the regulatory definition of decision provided by regulation 2(1) establishing that it concerns an entitlement to be admitted to the United Kingdom or to be issued with a residence card. At 45 of the judgment Irwin L.J. confirmed that entitlement was subtly different from a right. The natural meaning of the latter was something inherent and existing. The natural meaning of an entitlement was a benefit which was obtained or granted. Therefore, a decision which concerned entitlement was one that naturally included a decision about whether to grant such an entitlement. Because a decision concerning entitlement to be admitted or granted residence is an EEA decision within the Regulations, it came within Schedule 1, paragraph 1 to the 2006 Regulations and so created a right of appeal to the First-tier Tribunal as if it were an appeal against an immigration decision under section 82(1) Nationality, Immigration and Asylum Act The approach of the parties before the Upper Tribunal was thereby confirmed. Back to the 2006 Regulations 67. It should be overlooked that the Secretary of State may decide to pursue an appeal in Khan on the issue of interpretation, though she may wish to be mindful that the Supreme Court could seek to be informed in greater detail as to the significant change in her approach to the issue, and the Supreme Court itself may decide to grapple with the issue in SM (Algeria). However, as of the present time we find ourselves back to the pre-sala position that was understood by all for some 10 years: EFMs enjoy a right of appeal to the First-tier Tribunal under the 2006 Regulation against an adverse decision to issue a residence card where they rely upon their familial relationship with an EEA national exercising Treaty rights. 11

12 68. Those EFMs who lodged an appeal with the First-tier Tribunal for decisions made on or before 31 January 2017 on the basis that Sala was wrongly decided can continue to enjoy their right of appeal as it was lawfully filed under the Regulation. 69. Those who appealed no jurisdiction decisions issued by the First-tier Tribunal to the Upper Tribunal and were subsequently refused, or those initially successful before the First-tier Tribunal who fell foul of the Upper Tribunal, can pursue (out-of-time) appeals for permission to appeal and place reliance upon the judgment in Khan. 70. As to those who did not file an appeal, possibly seeking to judicially review the refusal to grant appeal rights or awaiting developments, they may wish to make an out-of-time appeal and seek to rely upon the Court of Appeal judgment. An extension of time can be sought on the basis that Sala was wrongly decided by the Upper Tribunal and therefore unlawfully relied upon subsequently by both the First-tier Tribunal and the Upper Tribunal. As the House of Lords confirmed in Kleinwort Benson Ltd. v Lincoln City Council [1999] 2 AC 349, the Court of Appeal in Khan is stating the law as it has always been. 71. It would not necessarily be appropriate for this category of EFM to seek a new decision as such decision will be made under the 2016 Regulations for which no appeal right exists at the present time. 72. For those considering out-of-time judicial review challenges it is apt to note that it is the established practice of the High Court to make no order for costs for or against an inferior tribunal or court that has acted in a judicial capacity: R (on the application of Gudanaviciene) v. First-tier Tribunal (Immigration and Asylum Chamber) [2017] EWCA Civ 353; [2017] 1 WLR 4095 and R (on the application of Gourlay) v. Parole Board [2017] EWCA Civ 1003; [2017] 1 WLR The statutory appeal process may therefore be appropriate in costs terms to many EFMs. The 2016 Regulations is the genie is out of the bottle? 73. In Khan the Court was concerned only as to the issue of the interpretation of the 2006 Regulations. By restricting its consideration to the matter of interpretation of the Regulations, and being mindful that the 2006 Regulations are no more, it is unclear as to where that leaves everyone in For those EFMs whose adverse decisions as to residence cards were made on or after 1 February 2017, the 2016 Regulations identify the present appeal regime. 75. It is a matter for the Home Office to consider its position and decide whether it wants to revert back to the appeal regime existing under the 2006 regulations but it is not bound to do so and may seek to entrench its present position. Indeed, practitioners should note the likelihood of entrenchment as the position of the Home Office post- Sala has been to seek to restrict appeal rights to EFMs and the Secretary of State unsuccessfully sought permission to appeal to the Supreme Court. 76. The remittal of Mr. Khan s matter to the Upper Tribunal was stayed pending judgment by the Supreme Court in SM (Algeria) so the saga of Sala is therefore not over (yet). 12

13 77. An insight into a potential challenge to a regime where the remedy to an adverse decision is by way of judicial review proceedings (2016 Regulations) rather than (2006 Regulations) is offered by Irwin L.J. at 46 of the judgment in Khan: Although it forms no part of my reasoning in reaching this conclusion, it appears to me that an appeal before a Tribunal is a preferable procedure in this context to judicial review. I have already indicated 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) [of the 2006 Regulations]. 78. An EFM is characterised under article 3 of the Directive 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 proceeds 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 of Appeal observed that those are not neutral formulations. They are clearly intended to confer on the EFM and 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. It was noted that these provisions found an echo in Regulations 17 and 20 of the 2006 Regulations. 79. The Court of Appeal may well have placed the ball back in the Secretary of State s court with regard to EFM appeal rights and the 2016 Regulations though in the current climate further litigation should be expected. Declan O Callaghan Landmark Chambers 14 November

14 Annex 1 Citizens Directive Article 3 is concerned with beneficiaries : 1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them. 2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons: (a) (b) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen; the partner with whom the Union citizen has a durable relationship, duly attested. The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people. Article 3.2 is mirrored in regulation 17(5) of the EEA Regulations 2006 and regulation 17(6) of the EEA Regulations 2016 Immigration (European Economic Area) Regulations 2006 Regulation 2(1) defines an EEA decision as follows: 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; (c) a person s removal from the United Kingdom; or 14

15 (d) the cancellation, pursuant to regulation 20A, of a person s right to reside in the United Kingdom; but does not include decisions under regulations 24AA (human rights considerations and interim orders to suspend removal) or 29AA (temporary admission in order to submit case in person); Regulation 7 lists those who are to be treated as family members for the purposes of the Regulations, including in regulation 7(3): A person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as a family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked. Regulation 8(1) defines an EFM to include someone who satisfies the condition in regulation 8(5): A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national. Regulation 17 provides for the issue of a residence card to a non-eea national family member (regulation 17(1)-(3)) and extended family member of an EEA national (regulation 17(4) and (5)). Regulation 17(4) is concerned with EFMs and is in the following terms: The Secretary of State may issue a residence card to an extended family member not falling within Regulation 7(3) who is not an EEA national on application if (a) (b) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under Regulation 15; and in all the circumstances it appears to the Secretary of State appropriate to issue the residence card. In exercising that discretion regulation 17(5) provides that: Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security. 15

16 The relevant provisions dealing with a right of appeal are found in regulation 26 with regulation 26(1) sets out a general right of appeal against an EEA decision : Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision. Immigration (European Economic Area) Regulations 2016 Regulation 2(1) defines an EEA decision as follows: 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). 16