A very interesting case has been promulgated by the Upper Tribunal (UT) on the subject of appeals by Extended Family Members (EFMs) of EEA nationals- Sala (EFMs: Right of Appeal)  UKUT 00411 (IAC). An EFM is a term of art which denotes relatives who are not spouses/ civil partners, and direct relatives in the ascending or descending line, but who are nevertheless part of an EEA national’s family unit.
EFMs are defined with the Immigration (European Economic Area) Regulations 2006 as members of the EEA national’s household, relatives dependent on the EEA national and relatives requiring personal care (by the EEA national or their spouse) on serious health grounds. In addition an EFM can be the ‘durable partner’ of the EEA national, which basically covers those in unmarried but cohabiting relationships.
The UT’s ‘bombshell’ is that actually, contrary to practice for at least a decade, EFM’s do not generally enjoy a right to appeal to the tribunal if the Home Office refuse their application for a residence card (or other documentation such as a family permit or registration card). What is remarkable, as the UT itself highlights, is that this issue has just not been picked up before:
“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 2006. 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  UKAIT 00034.
The fact that the right of appeal has been long assumed or accepted is not, in itself, determinative of how we should decide this appeal which must be based upon the proper construction of the EEA Regulations 2006 taking into account, perhaps for the first time, detailed submissions on the point. 'Longstanding universal mistake' is not a canon of construction of a legislative instrument; nor, in the case of domestic legislation, is there any equivalent of art 31(3)(b) of the Vienna Convention on the Law of Treaties (adopted 23 May 1969, Vienna, Austria) which requires subsequent practice "which establishes the agreement of the parties regarding its interpretation" to be taken into account in construing an international Treaty.”"
Essentially all of the appeals taken against decisions of this type since the advent of the 2006 regulations (and possibly even under the pre-cursor regulations) have been without jurisdiction according to the decision in Sala. Personally I can cite at least half a dozen appeals against decisions of this type which I conducted over the years, mostly successfully, but never considering that in fact there was no right of appeal in the first place. Many of those clients affected went on to get their residence card and get on with their lives.
What is also pretty remarkable in this case is that both the representative for the appellant and for the respondent (the Home Office) argued that there was a right of appeal. However the UT, consisting of Mr Ockelton the Vice President and Professor Grubb, decided after hearing these submissions that it still harboured doubts about whether there was in fact a right of appeal, and asked for the Attorney General to supply counsel to act as a friend of the court to present the contrary view (not a common occurrence).
So what has everyone been getting wrong? It comes down to the word ‘entitlement’. What sets EFM’s apart is that in contrast to ‘family members’ (spouses/ civil partners, parents, children), who are entitled to a residence card, an EFM has no entitlement since the Secretary of State has a discretion to issue a residence card.
An appeal right under the 2006 regulations is against an EEA decision which concerns, by definition, a person’s entitlement to be in the United Kingdom. The UT’s position therefore, in a nutshell is that a decision to refuse to issue a residence card to an EFM is not a question of their entitlement, since it is dependent on discretion being exercised by the Secretary of State.
There are a couple of important strands to this case. The first is that the restriction on appeal would only operate in situations where the appellant had not previously been granted a residence card. The reason for this is that once an EFM has been granted an EEA family permit, a registration certificate or a residence card then the regulations bring them within the definition of ‘family member’ at regulation 7. They would therefore, on subsequent applications ostensibly have a right of appeal since having benefited from the exercise of discretion in their favour they would then enjoy an ‘entitlement’ to a residence card (or other document) as a family member.
The second tortuous but interesting point is to do with subsequent amendments to the EEA regulations. Counsel for both the appellant and the Secretary of State argued that the Immigration (EEA) (Amendment) (No 2) Regulations 2012 (SI 2012/2560) introduced restrictions on the rights of appeal for individuals claiming to be in a ‘durable relationship’ with an EEA national which could only be in light of an accepted position by Parliament that these individuals had a right of appeal under the 2006 regulations, otherwise what was the point of the 2012 amendment?
Not so said the UT, for two main reasons:
1) Attractive though that argument was, since the provisions at regulation 26(2A) did indeed seem directed at EFM’s who possessed a right of appeal, the Supreme Court’s decisions in Boss Holdings Limited v Grosvenor West End Properties and others  UKHL and R (Brown) v SSHD  UKSC 8 prohibited the UT from using a subsequent amendment to a sub-section to interpret the meaning of the original section, unless the amendment explicitly sought to do so.
2) In addition the UT considered that whilst the language of regulation 26(2A) did seem very specifically directed to EFMs it could not be said conclusively that the regulation did not simply apply more generally, such as to those who had previously obtained a residence card on the basis of a durable relationship and were now family members.
We are now in the bizarre situation that despite the Home Office actually arguing for a right of appeal- which is really against the grain- the UT has decided that there is no right of appeal. This means that anyone applying for a residence card or family permit as an EFM will not have an appeal right to the Tribunal. Their remedy will be judicial review.
However my instinct is that this will not remain the case for long. Firstly I think it quite likely this decision will be appealed and is not the last word. Secondly since the Home Office was arguing for a right of appeal, they may simply amend the 2006 Regulations to permit an appeal. Clearly counsel for the Secretary of State in the UT hearing was acting on instructions and I think even the Home Office would recognise that operationally it is not going to be feasible to have judicial review as the only remedy for EFMs who have been refused a residence card.
Indeed what is notable is that there are often disagreements between applicants and the Home Office as to the interpretation of the EEA regulations and whether someone falls into the appropriate category of EFM. These are generally disputes as to the facts of a case and a tribunal hearing on the facts is often the only way to conclusively resolve the position. Judicial review is not suited to that kind of disagreement and the Senior Home Office Presenting Officer who took part in the UT hearing in Sala appeared to accept that in the exercise of discretion the Secretary of State is still obliged to undertake an extensive examination of the circumstances and provide reasons for any refusal. Such an exercise of discretion is much more amenable to review under an appellate right by a fact finding tribunal rather than a judicial review (which generally cannot review discretion that has been exercised within normal parameters of decision making and is compliant with the principles of public law).
Watch this space I suppose. A very technical case, and one which reminded me in some ways of Shahzad (s85A: commencement)  UKUT 00081 (IAC) which was also concerned the complexities of drafting and intended effect. I suspect the Home Office would rather an appeal right was in place and will move to make that a reality.
actually, in contrast to my view expressed above, the Home Office have now amended their Modernised Guidance to reflect the decision in Sala that there is no right of appeal. The speed of this amendment perhaps reflects that they are quite happy with the removal of a right of appeal, which is depressingly shortsighted....