The Upper Tribunal has now ruled that because extended family members of a qualified EEA national are not automatically entitled to a residence card, there is accordingly, no right of appeal against a decision from the Home Office to refuse to issue the residence card.
Under European law, an EEA national who is exercising treaty rights (i.e. as a worker, job-seeker, self-employed, student or self-sufficient) or has obtained permanent residence in the UK is able to bring their family members to join them in the country or apply for them to remain in the UK.
Regulation 8 of the EEA Regulations 2006 defines an extended family member to be a person who is not a 'direct' or 'immediate' family member as set out in Regulation 7 and includes 'durable' partners of EEA nationals, relatives who were and continue to be dependent/part of the EEA national's household, a relative who provides personal care to an EEA national who strictly requires such care and dependent relatives who would meet the requirements under the equivalent requirements in the Immigration Rules.
Importantly, the list of who is a 'relative' is not exhaustive; it includes brothers, sisters, aunts, uncles, cousins, nieces, nephews great aunts, second cousins, etc.
Traditionally, the majority of refused EEA applications carried a right of appeal. This means that if you make an application as an EEA national or as the family member (EEA permanent residence card, Residence Card, Family permit, etc), and your application is refused, you will normally have a right of appeal.
However, recently a question has been raised as to whether extended family members are entitled to appeal refused decisions- whether or not, in regards to whether or not extended family members have the same rights of appeal as compared to a direct family member?
Well, until recently, it was set in stone that both direct and extended family members of EEA nationals had rights of appeal in the event of a refusal (subject to a few technical exceptions).
However, in the case of Sala (EFMs: Right of Appeal: Albania)  UKUT 411 (IAC), the Upper Tribunal have now ruled that
Extended Family members of EEA nationals do not have statutory rights of appeal against a decision of the Home Office not to grant them residence cards.
A residence card is a document confirming the rights of residence of EEA Nationals or their family members in the UK. European nationals automatically have rights of residence in the UK by virtue of the EEA free movement principle, so long as they exercise treaty rights. They normally don't have to apply for a residence card to be entitled to residence in the country, they automatically have it and only need the residence card as documentary evidence of that right.
In the case of Sala (EFMs: Right of Appeal: Albania)  UKUT 411 (IAC), the appellant was an Albanian national who illegally entered the UK and later applied for a residence card as an extended family member of a European on the basis of him being in a durable relationship with a Slovakian national.
The judge accepted that their relationship was durable. However, the Judge was focused heavily on Regulations 2 and 26 of the EEA Regulations 2006 which indicates an individual's entitlement to be admitted or remain in the UK with respect to the individual's right to be issued, renew or revoke rights of residence in the UK (under the EEA Regulations) - and who could appeal negative decisions.
The Tribunal held that even though immediate or direct family members of a European national were entitled to join/stay with their European family members in the UK, an extended family member did not benefit from an automatic right to reside in the UK that direct family members enjoy. The Tribunal's interpretation was that the rights of an extended family member with regards to rights of residence was discretionary. It concluded that the decision of the Secretary of State not to issue a residence card to an extended family member of an EEA national under Regulation 17 (4) was discretionary and not one of 'entitlement'. Importantly, the discretionary (as opposed to entitlement) nature of applications submitted by extended family members also means that they could not appeal refusals of their applications.
In the light of this new decision, the Home Office has quickly amended their guidance, on the 22nd of September 2016, saying that there is no right of appeal against a refusal of a Residence Card application for an extended family member.
Now that they don't have rights of appeal, what options exist for extended family members of EEA Nationals?
If you are faced with a refusal under the route, the following options may now apply: -
A fresh application may be a solution, depending on the circumstances. If the refusal was as a result of missing documents or the Home Office misunderstanding something(s), then a fresh application will be a viable solution to resolve those issues. However, if the refusal is as a result of a fundamental issue, a fresh application may not be the most appropriate solution.
When attempting to submit a human rights applications after a negative EEA application, we recommend that serious care be taken here as the Home Office may certify the application as 'clearly unfounded' - ironically again leading to the conclusion that you will not be entitled to appeal such a decision from within the UK. If this happens, a right of appeal will not be given.
For Judicial Review applications, please note that this decision in the first place was as a result of a judicial review decision. As such, we must now wait to see if the Applicants in the case of Sala will seek to appeal to the Court of Appeal. In the meantime, a Judicial Review application may now be the only appropriate solution to formally challenge a negative decision from the Home Office - especially in cases involving fundamental issues that the Home Office will not overturn without an Order of the Judge.
Clearly, this not a welcomed decision; and if you have further questions or need advice on your immigration matter, contact our immigration solicitors today on 020 3744 2797 or send us an email on firstname.lastname@example.org.
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