Muhammad Yasir Khan v Secretary of State for the Home Department The Aire Centre (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Lord Justice Longmore,The Master of the Rolls |
| Judgment Date | 09 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1755 |
| Docket Number | Case No: C9/2016/4413 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 2017 |
[2017] EWCA Civ 1755
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
Deputy Upper Tribunal Judge Parkes
Reference No IA/02180/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Longmore
and
Lord Justice Irwin
Case No: C9/2016/4413
and
Ramby de Mello and Rajiv Sharma (instructed by Stella Maris Solicitors) for the Appellant
Brian Kennelly QC and Ben Lask (instructed by Government Legal Department) for the Respondent
David Chirico and Catherine Robinson (instructed by Herbert Smith Freehills LLP) for the Intervener
Hearing dates: 12 October 2017
Issue: Sala (EFMs: Right of Appeal) [2016] UKUT 0411 (1AC)
The issue in this case derives from an earlier case: was Sala wrongly decided? 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? At the conclusion of the argument we indicated our view that Sala was wrongly decided. We now give our reasons.
The Relevant EU and UK Legislation
The relevant legislation is annexed to this judgment, for convenience.
Procedural History
The Appellant is a Pakistani national. He applied for a residence permit as an "Extended Family Member" ["EFM"] of his uncle, a German national. On 19 December 2014 the Respondent refused to grant 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 ("FtT"] who allowed his appeal on 21 October 2015.
On 12 October 2016, the Upper Tribunal ["UT"] ruled that the FtT lacked jurisdiction to hear the appeal following the decision in Sala. They concluded any challenge to the refusal to issue a residence card must be by way of judicial review. The Appellant appeals by leave of Underhill LJ.
The Intervener [The Centre for Advice on Individual Rights in Europe: "the AIRE Centre"] was granted permission to intervene by Hickinbottom LJ on 7 July 2017.
The Grounds of Appeal
The Appellant advances three Grounds as follows:
i) The UT should have permitted the parties to make submissions as to the decision in Sala, and the existence of the jurisdiction, before reaching its determination on the issue.
ii) That in any event, 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.
iii) That if Sala was correctly decided, and the 2006 Regulations cannot be construed so as to afford the Appellant a right of appeal to the Tribunals, the Regulations should be struck down as incompatible with EU law. To that end, the Appellant would ask the Court of Appeal to reconstitute as a Divisional Court and determine this issue.
The Appellant was granted leave to appeal on Grounds 1 and 2, but not Ground 3.
I agree with the Respondent that the critical ground, and the starting point for our consideration, must be Ground 2.
Ground 2: Does the FtT (and thus the UT) have jurisdiction to hear an appeal?
It is appropriate to begin by analysing the decision in Sala.
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 UT adjourned the matter, as a preliminary issue, and appointed an amicus curiae. Counsel attended the adjourned hearing as an amicus, and presented argument against the existence of the supposed jurisdiction, although making some concessions as to some of the parties' arguments. Both the Appellant and the Secretary of State maintained that the Tribunal had jurisdiction.
However, the UT ruled against the parties. The essence of their reasoning was as follows. There is an important distinction in the 2006 Regulations between a "family member" and an "extended family member" of a relevant EEA national, which leads to different procedural routes of challenge. A "family member" within Regulation 7 "must" be issued with a residence card, once specified documents are produced: see Regulation 17. That is to say, a qualifying family member (as defined) who presents the relevant documents of identity, and proves family membership, has an entitlement to residence.
However, an extended family member acquires no automatic entitlement to residence, even if the stipulated conditions are fulfilled. Regulation 8 sets out the different ways in which an individual may demonstrate that they qualify as an EFM. For present purposes those differences are immaterial. Here, Regulation 17(A) stipulates that the Secretary of State "may issue a residence card" to an EFM, if the relevant EEA national fulfils the relevant criteria (Regulation 17(A)(a)) and, by Regulation 17(A)(b)):
"in all the circumstances it appears to the Secretary of State appropriate to issue the residence card."
Thus the critical distinction is between an entitlement to residence on the part of a qualifying family member, and a discretion to grant residence in favour of a qualifying extended family member.
The Upper Tribunal in Sala (and the Respondent before us now agrees) considered that the difference in the provisions of the 2006 Regulations flows from differences in Directive 2004/38/EC, which the Regulations implement. Recitals 5 and 6 are set out in Annex 1 to this judgment. The UT in Sala noted that Recital 5 stipulates that the right of Union citizens to free movement must be granted to their family members. However, in respect of those who are not included in the definition of family members and do not enjoy an automatic right of entry and residence, the question must be "examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence should be granted".
The UT also noted the provisions of Article 3 of the Directive, that a Member State "shall, in accordance with its national legislation, facilitate entry and residence" for qualifying EFMs and that to that end "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".
The UT also noted that, once an EFM had been issued with an EEA family permit (by the exercise of discretion) then by Regulation 7(3), that person "shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy" the relevant conditions. In other words, once the successful EFM has been granted residence, he or she acquires the rights of a family member, provided the threshold conditions persist.
The UT then made the following observations:
"26. It will be clear from this analysis that for EFMs recognition of their rights of admission and residence is conditional upon the relevant document, whether family permit, registration certificate or residence card, being issued under the EEA Regulations 2006 (see, Aladeselu and others v SSHD [2013] EWCA Civ 144 at [52]). This, of course, contrasts with the position of "family members" who derive their rights of admission and residence directly from EU law and the relevant documentation is merely evidence of that right. This is important. The EEA Regulations 2006 see the rights of family members and EFMs in different ways. The rights of family members derive from the Citizens Directive, those of EFMs from national law apart from the procedural right to have their applications determined following extensive examination of their personal circumstances. Family members have rights independent of being issued with a residence card. EFMs' rights, if any, derive from the exercise of the Secretary of State's discretion to issue (and allow them to keep) a residence card; their substantive rights arise only after the card is issued."
On those premises, the UT in Sala moved to consider the provisions concerning appeals.
The UT began by considering Regulation 26(1) which sets out a general right of appeal:
"26(1) subject to the following paragraphs of this regulation, a person may appeal under these regulations against an EEA decision [emphasis added]."
An EEA decision is defined in Regulation 2(1). The terms are set out in Annex 2 to this judgment. The critical words are:
"EEA decision means a decision that concerns –
(a) a person's entitlement to be admitted to the United Kingdom;
(b) a person's entitlement to be issued with … a … residence card …"
The UT also cited the specific Regulations for appeals dealing with one basis on which a person may qualify as an EFM. Regulation 26(2A) (again cited in Annex 2) bears on the factual basis of the claim in Sala:
"2A. If a person claims to be in a durable relationship with an EEA national he may not appeal under these Regulations unless he produces [the relevant documents and evidence]."
The UT noted that Regulation 26(2A) was inserted by amendment in late 2012. This became significant in their reasoning, since they found that an amendment could not properly be the basis for clarification or interpretation of the Regulations as originally enacted.
The UT turned finally to Regulation 26(3). Here the provision they found significant is that:
"26(3) If a person … claims to be the family...
To continue reading
Request your trial
-
Bhavsar (Late Application for PTA: Procedure)
...“Ohranitelna politsia” pri Ministerstvo na vatreshnite raboti (Case C-430/10) Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755; [2018] 1 WLR 1256; [2018] Imm AR 440; [2018] INLR 39 R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the H......
-
SM (Algeria) v Entry Clearance Officer, UK Visa Section
...before the second hearing before us, the Court of Appeal handed down judgment in Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755, in which the Secretary of State had refused to grant a residence card to the Pakistani nephew of a German national. The arguments were wi......
-
SM (Algeria) v Entry Clearance Officer, UK Visa Section
...before the second hearing before us, the Court of Appeal handed down judgment in Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755, in which the Secretary of State had refused to grant a residence card to the Pakistani nephew of a German national. The arguments were wi......
-
L -v- Minister for Justice
...was disapproved of by a judgment of the Court of Appeal of England and Wales in Khan v. Secretary of State for the Home Department [2017] EWCA Civ 1755, [2018] 1 W.L.R. 1256, which was itself specifically approved by the Supreme Court of the United Kingdom in S.M. (Algeria) v. Entry Cleara......