Sala (Efms: Right of Appeal)

JurisdictionUK Non-devolved
JudgeMr C M G Ockelton,Grubb,Grubb UTJ,CMG Ockelton
Judgment Date19 August 2016
Neutral Citation[2016] UKUT 411 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date19 August 2016

[2016] UKUT 411 IAC

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr C M G Ockelton, VICE PRESIDENT

UPPER TRIBUNAL JUDGE Grubb

Between
Shemsi Sala
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr D O'Callaghan (7 June 2016) and Mr P Bonavero (7 July 2015) instructed by Kilby Jones Solicitors LLP

For the Respondent: Ms J Smyth instructed by the Government Legal Department (7 June 2016) and Mr P Deller, Senior Home Office Presenting Officer (7 July 2015)

Friend to the Court: Ms S Broadfoot instructed by the Government Legal Department

Sala (EFMs: Right of Appeal)

There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member.

DETERMINATION AND REASONS
1

This appeal raises the issue of whether a person who is refused a residence card as an “extended family member” (“EFM”) under the Immigration (EEA) Regulations 2006 ( SI 2006/1003 as amended) (the “EEA Regulations 2006”) has a right of appeal to the First-tier Tribunal under reg 26 of the EEA Regulations 2006.

2

For the reasons we give below, we have reached the conclusion that no right of appeal exists.

Introduction
3

The appellant (as we shall continue to call him) is a citizen of Albania who was born on 19 January 1987. He entered the UK illegally on 28 June 2011. On 3 May 2013, the appellant applied for a residence card as the EFM of an EEA national, Ms Livia Valasekova, a national of the Slovak Republic with whom he claimed to have a “durable relationship” and as such was an EFM under reg 8(5) of the EEA Regulations 2006.

4

On 10 October 2013, the Secretary of State refused the appellant's application. The Secretary of State was not satisfied on the evidence that the appellant's relationship with Ms Valasekova, though genuine, was a durable one. In addition, the Secretary of State concluded that as the appellant had entered the UK illegally he had not “provided enough evidence to allow us to exercise discretion in your favour”.

5

The notice of refusal to issue a residence card dated 10 October 2013 stated that the appellant had a right of appeal against the refusal under s.82 of the Nationality, Immigration and Asylum Act 2002 (the “NIA Act 2002”) and the EEA Regulations 2006.

The Appeal to the First-tier Tribunal
6

The appellant appealed to the First-tier Tribunal. In a determination dated 26 June 2014, Judge Knowles dismissed the appellant's appeal under the EEA Regulations 2006 and also under Art 8.

7

On the evidence, the judge accepted that the appellant and Ms Valasekova were in a “durable relationship” and that therefore the appellant was an EFM under reg 8(5) of the EEA Regulations 2006. As regards the exercise of discretion to issue a residence card under reg 17(4), the judge decided that the Secretary of State's consideration of her discretion was not consistent with the requirement in reg 17(5) that there be an “extensive examination of the personal circumstances” of the appellant. Judge Knowles went on to consider the appellant's circumstances and concluded that the discretion under reg 17(4) should not be exercised differently so as to issue a residence card to the appellant and consequently he dismissed the appeal under the EEA Regulations 2006.

The Appeal to the Upper Tribunal
8

The appellant sought permission to appeal to the Upper Tribunal essentially on the basis that discretion should have been exercised in the appellant's favour under reg 17(4). Permission was initially refused by the First-tier Tribunal but on 16 October 2014 the Upper Tribunal (UTJ Perkins) granted the appellant permission to appeal on the basis that it was arguable that the judge's “approach to the exercise of discretion is flawed”.

9

The appeal was initially listed before the Upper Tribunal (VP Ockelton and UTJ Grubb) on 5 February 2015. At that hearing, the Tribunal raised with the representatives two issues which concerned the Tribunal, namely whether the appellant had a right of appeal under the EEA Regulations 2006 and whether, if he did, the judge had been entitled to exercise the discretion under reg 17(4) himself. As the first issue went to the jurisdiction of the First-tier Tribunal, the matter could not be settled by the parties' agreement or consent. In order to allow the parties to deal with these issues, the appeal was adjourned and directions were issued by the UT on 3 March 2015, identifying these two points of law and directing that written submissions be made by the parties in respect of both issues.

10

The appeal was then again listed before the UT as previously constituted on 7 July 2015. At that hearing, the appellant was represented by Mr Bonavero and the respondent by Mr Deller. Both representatives made submissions to the UT to the effect that an EFM (such as the appellant) did have a right of appeal under the EEA Regulations 2006 against the (discretionary) refusal to issue a residence card. At the conclusion of the hearing, the Tribunal reserved its determination.

11

Following the hearing, we 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 to the Attorney General for the appointment of counsel to act as a friend to the court to present those arguments. There was a delay whilst arrangements were agreed and made and, ultimately on 7 June 2016, the UT reconvened to hear argument from the parties represented by Mr O'Callaghan and Ms Smyth respectively and from Ms Broadfoot instructed as a Friend to the Court.

12

We are grateful to all counsel for their oral submissions as well as their written skeleton arguments. In addition, at the direction of the UT, on 21 June 2016 the parties filed further submissions (agreed between Ms Smyth and Mr O'Callaghan) on a specific point raised by the Tribunal as to the scope of reg 26(2A) of the EEA Regulations 2006 which was relied upon by the parties in support of their position that there was a right of appeal.

The Legislative Scheme in Outline
1. EFMs and ‘Family Members’
13

In this appeal, we are concerned exclusively with the right of appeal of an EFM as defined in reg 8 of the EEA Regulations 2006. We are not concerned with the right of appeal of an EEA national or of the “family member” of an EEA national as defined in reg 7 of the EEA Regulations 2006.

14

We have set out in full the relevant parts of the EEA Regulations 2006 in the Appendix to this determination along with relevant provisions in the Immigration (EEA) Regulations 2000 ( SI 2000/2326) (the “EEA Regulations 2000”).

15

So far as relevant to this appeal, reg 8(1) of the EEA Regulations 2006 defines an EFM to include someone who satisfies the condition in reg 8(5). It provides that:

“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.”

16

That is the provision which the appellant in this appeal claimed to satisfy and which the judge concluded he did satisfy.

17

Regulation 17 provides for the issue of a residence card to a non-EEA national “family member” (reg 17(1)-(3)) and “extended family member” of an EEA national (reg 17(4) and (5)). Equivalent provisions exist in reg 16 for the issue of a registration certificate where the “family member” or EFM is an EEA national (see reg 16(3)-(4) and regs 16(5)-(6) respectively. In each case issue is required. Regulation 17(4), however, deals 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) 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

  • (b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.”

18

The appellant's application in this case was for a residence card as an EFM based upon his durable relationship with Ms Valasekova who was an EEA national exercising treaty rights in the UK and fell to be considered under reg 17(4).

19

As will be clear from reg 17(4)(b), the Secretary of State has a discretion to issue a residence card where a person establishes they are an EFM. Unlike the position with a family member of an EEA national, an EFM has no right to be issued with a residence card as is the case for EEA nationals and their “family members” under reg 16 and reg 17(1)-(3).

20

In exercising that discretion, reg 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.”

21

We have set out the relevant domestic law, contained in the EEA Regulations 2006, rather than Directive 2004/38/EC (the “ Citizens Directive”) which is primarily concerned with the free movement and residence of EEA nationals and their “family members” as defined in Art 2.2 of that Directive. So far as “other family members” including those in a “durable relationship”, are concerned Art 3.2 of the Citizens Directive provides that a Member State should “in accordance with its national legislation, facilitate entry and residence” of “the partner with whom the Union Citizen has a durable relationship, duly attested”. Further, the Citizens Directive (mirrored in reg 17(5) of the EEA Regulations 2006) provides in Art 3.2 that:

...

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