Shemsi Sala v Secretary of State for the Home Department
This appeal raises issue of whether a person who is refused a residence card as an “extended family member” has a right of appeal to the FTT under regulation 26 of the EEA Regulations 2006. The appellant is a citizen of Albania, who entered the UK illegally in June 2011. In May 2013 the appellant applied for a residence card as the EFM (extended family member) of an EEA national of Slovakia with who he claimed to have a durable relationship and as such was an EFM under regulation 8(5) of the EEA Regulations 2006. EEA national of Slovakia was exercising her Treaty rights.
October 2013 the application for a residence card was refused by the Secretary of State. The Secretary of State was not satisfied on the evidence that the appellant’s relationship with his EEA partner, though genuine, was a durable one. In addition, it was concluded that as the appellant had entered the UK illegally he had not “provided enough evidence to allow the Secretary of State to exercise the discretion in appellant’s favour”.
The notice of the refusal to issue a residence card stated that the appellant had a right of appeal against the refusal under section 82 of the Nationality, Immigration and Asylum Act 2002 and the EEA Regulations Act 2006.
The appellant appealed to the FFT, and in a determination dated June 2014 the Judge dismissed the appellant’s appeal under the EEA Regulations 2006 and also under Article 8 ECHR. The Judge accepted that the appellant and his EEA national partner were in a “durable relationship” and thus the appellant was an EFM under regulation 8(5) of the EEA Regulations 2006. As regards the exercise of discretion to issue a residence card under regulation 17(4) of the EEA Regulations 2006, the Judge stated that the Secretary of State did not consider the requirement of regulation 17(5) that there be an “extensive examination of the personal circumstances”, and after consider this point of the regulation, the Judge concluded that the Secretary of State’s exercise of discretion should not be exercised differently and subsequently dismissed the appeal under the EEA Regulations 2006.
Furthermore, the appellant sought permission to appeal to UT on the basis that discretion should have been exercised in the appellant’s favour under regulation 17(4). Permission was refused by the FTT but in October 2014 the UT granted the appellant permission to appeal on the basis that it was arguable that the Judge’s approach to the exercise of discretion was flawed.
The appeal was listed for February 2015. The Tribunal raised two issues:
- Whether the appellant had a right of appeal under EEA Regulations 2006;
- If he did, the Judge had been entitled to exercise the discretion under regulation 17(4) himself;
The appeal was adjourned and took place in July 2015. The representatives of the appellant made representations to the UT that the appellant, being an EFM, did have a right of appeal under the 26(2A) EEA Regulations 2006 against the discretionary refusal to issue a residence card. The Tribunal reserved its determination.
Once the residence card is issued, the EEA Regulations 2006 place EFMs in the same position as family members“, and therefore the EFM has the same right to admission and residence under EEA Regulations 2006 as does a “family member”.
The rights of family members derive from the Citizens Directive, however those of extended family members derive 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, whereas extended family members rights derive from the exercise of the Secretary of State’s discretion to issue a residence card, their substantive rights arise only after the card is issued.
Under regulation 26(1) an EFM based upon durable relationship with an EEA national must have a right of appeal, otherwise there would have been no point in placing a limitation on such a person’s ability to appeal.
Consequently, the appellants right of appeal rests on the following:
- A decision made under the EEA Regulations 2006
- And that decision concerns a person’s entitlement to be issued with a residence card.
The issue in this appeal is whether that decision concerns the appellant’s entitlement to be issued with a residence card.
Under regulation 17(4) a decision involves two steps from which an individual’s entitlement to the residence card flowed. Step one requires to establish that the individual is an extended family member of a qualified person or an EEA national with a permanent right of residence. Having established that, step 2 requires the Secretary of State to exercise discretion whether to issue a residence card. If the Secretary of State makes an adverse decision in respect of an individual at step 1 or 2 then it is a decision which concerns an individuals’ entitlement to a residence card.
The representatives of the appellant argued that Parliament supported the position that EFM which derives from a durable relationship had a right of appeal including against a refusal of a residence card. Regulation 26(2A) would make no sense if an EFM had no right of appeal.
However, it is argued that the decision making process leading to the outcome does not entail a “right” or an “entitlement” to the card and any decision made cannot “concern” an “entitlement” to the residence card when the decision making process does not entail such an entitlement. The judgement under regulation 2(1) with which this case is concerned does not include a decision to refuse a residence card to an EFM under regulation 17(4) or to refuse a registration certificate to an EEA national EFM under regulation 16(5).
A decision taken by the Secretary of State in the exercise of her discretion not to issue an EFM with a residence card under regulation 17(4) is not a decision under the EEA Regulations 2006 which “concerns a person’s entitlement to be issued with a residence card”.
To conclude, it follows that the appellant has no right of appeal. The FTT had no jurisdiction to hear the appeal. It erred in law in doing so.