In the case of Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) the Upper Tribunal has held that there is no right of right of appeal against the Home Office’s decision not to grant a Residence Card to the Extended Family Member (“EFM”) of an EEA national. EFMs are defined as durable partners, 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.
Regulation 26 of the Immigration (EEA) Regulations 2006, provides “a person may appeal under these Regulations against an EEA decision”. Regulation 2(1)(b) defines an “EEA decision” as including “a person’s entitlement to be issued with or have renewed, or not to have revoked, a…residence card…”.
The Upper Tribunal, determined that the key word was “entitlement” and as the Home Office had a discretion to issue Residence Cards to EFMs, it could not be said they enjoyed an “entitlement” to a Residence Card. This case does not affect family members such as spouses of EEA nationals, as they have the “right” to be issued with a Residence Card.
This is a truly remarkable case, one which even Judge Ockelton and Professor Grubb found difficult to determine. The decision means that all current and pending appeals by EFMs will be rejected as invalid and the only appropriate way to challenge the Home Office’s decision to refuse to issue an EEA Residence Card is by way of judicial review proceedings. This is far more expensive than appealing a decision and involves a costs risk for unsuccessful Claimants.
Our immigration lawyers are regularly instructed to prepare Family Permit and Residence Card applications and are available to consult with you if you face a refusal. If you would like further information, please contact our immigration team on 020 7539 8000 or email contact@clarkslegal.com.