Under the previous version of the UK’s EEA Regulations (2006), extended family members (i.e. not spouses or children) were held not to have a right of appeal against a refusal to issue them with a Residence Card. It was considered these refusals were not ‘EEA decisions’ and therefore could not be challenged. The case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC) confirmed this position and numerous appeals were put on hold or deemed invalid by the Tribunal.
Extended family members with outstanding appeals were often contacted by the Tribunals asking for justification as to why their cases should be able to proceed. As EEA appeals are limited to the EEA Regulations and human rights cannot be argued, many withdrew their appeal and there are doubtless those that gave up pursuing rights of residence and departed the UK. When the Home Secretary revised the EEA Regulation in 2016, it was made explicit – in line with Sala – that these appeal rights no longer existed at all.
This case was overturned yesterday in the Court of Appeal. A written decision has yet to be promulgated but a useful summary can be found on the excellent Free Movement blog: ‘https://www.freemovement.org.uk/breaking-sala-overturned-court-appeal/’
Anyone with an outstanding appeal as an EEA Extended Family Member under the 2006 Regulations can now reasonably expect their case to proceed to a full hearing. If anyone has had their right of appeal removed whilst awaiting a hearing, lodging a late appeal and requesting this right be reinstated would be prudent.
More complex is the situation for those under the 2016 Regulations where there is no prospect of an appeal for an EEA Extended Family Member. These rules remain in force and have not, according to the judgement, been challenged. It is also unclear, considering the scepticism of this Government regarding free movement of EEA nationals and their family members, whether they would take yesterday’s decision to mean that current Regulations need to be amended. If these rights are to start being phased out in a little over a year, there is not much impetus for them to do so.
If you are an EEA Extended Family Member and want to know how this decision might affect you, please contact Latitude Law on 0161 234 6800.