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Appeal rights for extended family members: the saga continues

Appeal rights for extended family members: the saga continues

I’m at a conference on EU free movement law today, organised by the Immigration Law Practitioners’ Association. One of the many useful pieces of information I’ve picked up already is about rights of appeal for extended family members of EU citizens who are denied residence cards.

This issue has a rather tangled history: first the Upper Tribunal decided in Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC) that there is no right of appeal for such people. Then the Court of Appeal held in Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755 that Sala was wrongly decided.

But that case was about the EEA Regulations 2006, which were ambiguous on whether people could appeal. As Jonathan Metzer explains over on the UK Human Rights Blog:

The 2016 Regulations expressly state that the refusal of a residence card to an ‘extended family member’ is not an ‘EEA decision’. This means that there is no right of appeal to the First-tier Tribunal.

As a result, the reasoning in Khan is very unlikely to apply to cases under the new Regulations.

Which brings us to the presentation by Rowena Moffatt of Doughty Street chambers at today’s conference, in which she pointed out that there is a judicial review challenge to the 2016 Regulations underway at the moment. I hadn’t spotted this, but a brief note on the Garden Court website says:

On 10 October 2018 the Secretary of State agreed that permission to apply for judicial review should be granted in a case in which it is argued on behalf of the Claimant that insofar as the Immigration (European Economic Area) Regulations 2016 prevents a Claimant from appealing a decision against refusal of a claim of an ‘extended family member’, the regulations are unlawful as they are inconsistent and incompatible with Directive 2004/38.

Grace Brown represents the claimant, instructed by Duncan Lewis. We’ll keep a close eye out for the result of that challenge.

 

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