EEA nationals wrongly denied right of appeal to the Immigration Tribunal
The Court of Appeal found that that relatives of EEA nationals were wrongly denied the right of appeal to the immigration tribunal.
The judgement in the case of MK (Pakistan) EWCA Civ 1755 constitutes a landmark as it reversed the Upper Tribunal decision which had abolished the rights of relatives of EU nationals to access the immigration Tribunal. This decision will positively affect relatives of EU nationals refused entry to the UK or refused recognition of their residence status here.
According to the facts, MK is a Pakistani National who applied to remain in the UK as a dependent on an EEA national. The Home Office refused the application as it was found that he was neither sufficiently dependent nor that his EEA National sponsor was ‘exercising treaty rights’. MK appealed and the First- Tier Tribunal allowed the appeal. Subsequently, the Home Office appealed to the Upper Tribunal who concluded that they did not have jurisdiction to hear the appeal, due to the effect of a prior case called Sala.
The settled understanding was that the EEA Regulations conferred a right of appeal to anyone who receives a refusal decision following an application for a residence permit as an Extended Family Member under regulations 8 and 17.
This changed in 2016, when the Upper Tribunal concluded that there was no jurisdiction to appeal against a refusal of a residence card for an application made by an Extended Family Member. The Home Office, consequently, re-wrote its policies and issued new regulations.
Many of those affected have had their appeals struck out by the Tribunal or withdrawn. Accordingly, they could only challenge the Home Office through Judicial Review, which is a much more difficult and costly process than an appeal. Claimants also faced the risk that if they lost their judicial review claims, they would have to reimburse the government its legal costs at privately paid rates. As a result, claimants have been wrongly considered as illegal immigrants.
However, the Court of Appeal in its recent decision found that the decision in Sala was wrong. The Court, in particular, made the following findings:
- Noted that the Home Office “Regulations are formidably obscure and badly drafted”(paragraph 27);
- Noted that the ordinary meaning of the word “concerns” in regulation 8 includes situations in which there may be an element of discretion (paragraph 45);
- Noted that the Upper Tribunal was wrong because it did not recognise the difference between an ”entitlement” and a “right” (paragraph 45) – an “entitlement” can exist subject to discretion;
- Stated that appeals it is a “preferable procedure”to challenge refusal decisions under the EEA Regulations (paragraph 46).