Appeal Rights and EFMs: The End of Sala

Khan v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1755 (09 November 2017)

Appeal rights in a hostile environment are a hotly debated topic in immigration law. Enforcement officials are notorious for denying appeal rights to immigration subjects. Sometimes immigration judges tend to mimic this behaviour. In these proceedings, the Court of Appeal held that the case of Sala (EFMs: Right of Appeal) [2016] UKUT 0411 (IAC) was wrongly decided. The demise of Sala is being widely celebrated by immigration lawyers and appellants alike. The Upper Tribunal was wrong to find that no statutory right of appeal exists against a refusal to grant a residence card to a person claiming to be an extended family member (EFM) of an EEA national. Contrary to the findings made by CMG Ockelton VP and UTJ Grubb in Sala, the First-tier Tribunal and the Upper Tribunal do indeed have jurisdiction to hear an appeal where the Home Secretary refuses to exercise her discretion to grant a residence card to someone claiming to be an EFM within the meaning of regulation 17(4) of the Immigration (European Economic Area) Regulations 2006. The exercise of such discretion is an “EEA Decision” within the meaning of regulation 2(1). Muhammad Yasir Khan is from Pakistan. Relying on his uncle, a German national, he applied for a residence permit as an EFM but his application was refused in 2014 because the decision-maker did not accept that he was an EFM under regulation 8(2).

The First-tier Tribunal allowed his appeal in 2015. However, in 2016, applying Sala the Upper Tribunal found that there was no jurisdiction to hear the appeal. Consequently, the refusal had to be challenged by judicial review proceedings instead. Undeterred, Khan appealed to the Court of Appeal arguing three points. First, that Upper Tribunal should have permitted the parties to make submissions as to the decision in Sala, and the existence of the jurisdiction, before reaching its determination on the issue. Second, and most importantly, that in any event, Sala was wrongly decided, and whether as a matter of domestic statutory construction, or as a matter of EU law, there is a right of appeal to the tribunal system. Third, that even if Sala was correctly decided, and the 2006 Regulations cannot be construed so as to afford an EFM a right of appeal to the tribunals, they should be struck down as incompatible with EU law (permission was refused on this ground).

The Approach in Sala

For a decade prior to the advent of Sala it was never in doubt that refusing an EFM the right of residence generated a right of appeal to the tribunal. In Sala itself the Romanian appellant – relying on a durable relationship with a Slovak woman – and the Home Office agreed that this was correct and argued that an appellate jurisdiction existed. Curiously, on the initiative of CMG Ockelton VP, the Upper Tribunal nevertheless adjourned the appeal and appointed an amicus curiae. Her views mostly tilted against the existence of an appellate jurisdiction. Stripping away the historic right of appeal, the Upper Tribunal shocked the world by ruling against the parties.

At the crux of this ruling was the distinction in the 2006 Regulations between a “family member” and an “extended family member” which, it was thought, results in the difference in appeal rights. In comparison to an extended family member, as defined in regulation 7, a family member “must” be issued with a residence card upon producing the documents specified in regulation 17. A qualifying extended family member has no automatic entitlement to residence rights even if the specified documents are provided. The key difference is that that a qualifying family member is entitled to residence and discretion exists for the Home Office to grant residence rights to a qualifying extended family member.

The Court of Appeal

Irwin LJ’s dissection of the flaws in Sala led his Lordship to hold that the First-tier Tribunal and the Upper Tribunal have jurisdiction to hear an appeal from refusal to exercise discretion to grant a residence card. The court lamented that everyone concerned agreed that the 2006 Regulations “are formidably obscure and badly drafted.” Khan made elaborate submissions on various aspects of the regulations, the EU principle of equivalence and the powers contained in section 109 of the Nationality, Immigration and Asylum Act 2002.

The provision in section 109 facilitates the making of regulations to provide for “an appeal against an immigration decision taken in respect of a person who has or claims to have a right under any of the Community Treaties”. Khan submitted that, as defined, an “immigration decision” satisfied and coincided with the decision in his case. He argued that when applied to someone in his position, the legislative intention driving the mechanics of the 2002 Act exacted that Parliament must have intended for the power to be exercised so as to grant a right of appeal, rather than challenge by way of judicial review.

“I found these arguments difficult to follow,” confessed Irwin LJ as he explained that Khan’s argument on section 109 failed “on a number of points.” Moreover, the drafting of the 2002 Act “is too unspecific”. The wording of section 109 (“has or claims to have a right”) does not coincide with the phraseology in the Regulations (“concerns … an entitlement”). The court said that section 109 points to an existing right, whether established or claimed, rather than an entitlement which might flow from the relevant decision.

The Directive’s overall provisions, as echoed by regulations 17 and 20, were of more assistance to Khan and others in a similarly tough predicament. Article 3 states that an EFM is a “beneficiary” of the Directive and article 3(2) specifies that “the host member shall, in accordance with its national legislation, facilitate entry and residence for” such an individual. “An extensive examination of the personal circumstances” is required in that regard and the host member shall “justify any denial of entry or residence” in that regard. Observing that these formulations are not neutral, Irwin LJ held that:

34. … They are clearly intended to confer on the EFM an advantage in terms of entry and residence over those without such connection with an EEA national. Hence the discretion of the Secretary of State is not unfettered.

The court rejected the submission that the decision-maker had no discretion under regulation 17(A) once the person in question established that he was an EFM. However the Home Office accepted that the discretion must be exercised within the constraints laid down in the legislation, keeping the Directive’s provisions in mind. To Irwin LJ’s mind, the point was fortified by article 8 of the ECHR which is mirrored by article 7 of the CFR and thus:

35. … In short, the Directive confers a clear advantage upon an EFM of an EEA national, as against others. EU law favours family integrity, and the exercise of discretion must be exercised in the prescribed way with that advantage, and with Article 7 and the EU principle of proportionality, in mind.

This logic was confirmed by Rahman (C-83/11, EU:C:2012:519, see here) which concerned article 3(2) of the Directive and the rights of “other family members” (or EFMs under the Regulations). AG Bot opined that the margin of discretion for the member state is limited and could not produce the effect of impeding the exercise of the EU citizen’s right of free movement and residence and needed to comply with the right to respect private and family life under article 7 of the CFR. The CJEU went on to recognise the member state’s wide discretion as to implementation but nevertheless explained that the “host member state must ensure that its legislation contains criteria which are consistent with the normal meaning of the term ‘facilitate’”. Rahman, the very case used to extinguish EFM appeal rights in Sala, was applied by Irwin LJ to hold that family integrity is vital to EU law. Indeed, discretion had to be exercised in the prescribed way with the advantage conferred by EU law, bearing in mind article 7 of the CFR and the principle of proportionality.

The official position fell into further difficulties because of the “General Interpretation” provisions in regulation 2. When the Regulations entered into force on 30 April 2006, an earlier version of section 82 of the 2002 Act applied and specified that an “immigration decision” included “refusal of leave to enter the United Kingdom”. Irwin LJ found that this formulation captured a refusal of admission or a residence card to an EFM and would trigger a right of statutory appeal subject to any applicable exclusion or exception.

With that in mind, an “EEA decision” was defined under the Regulations as a decision that “concerns” an entitlement regarding admission or to be granted residence in the UK, conditional upon exceptions specified in the Regulations. An EFM’s application for entry and residence is not one of the stipulated exceptions. A decision of this nature is an “EEA decision” as defined and brings the decision within the reach of paragraph 1 of Schedule 1 to the 2006 Regulations, creating a right of appeal under the Regulations to “the First-tier Tribunal as if it were an appeal against an immigration decision under Section 82(1)” of the 2002 Act. That conclusion was supported by from the use of the term “a member of the family of an EEA national” in the applicable ground of appeal set out at section 84(1)(d) of the 2002 Act.

The term of art “family member”, carrying specific meanings in the legislative context, had been avoided by the draftsman who had used a wider phrase (“a member of the family”) which was capable of including an extended family member. The Upper Tribunal held that the language of the regulations – “concerns … an entitlement” to enter and to be granted a residence card – mean an existing entitlement. No authority was advanced as to the meaning of this phrase and Irwin LJ held that:

45. In my view, not only does the context favour the Appellant’s interpretation (for the reasons set out above) but that is the more natural meaning of the words. An “entitlement” is subtly different from a “right”. The natural meaning of the latter is something inherent and existing. The natural meaning of an “entitlement” is a benefit which is obtained or granted. Moreover, a decision which “concerns” an entitlement appears to me naturally to include a decision whether to grant such an entitlement. That is precisely what the Secretary of State must do in such a case as this.

In a brief judgment, Longmore LJ said that ministers must not use their discretionary powers in an arbitrary way. Where executive power is exercised outside established legal principles the courts will not uphold such behaviour. Overall, refusing to grant a residence card to Khan was nothing other than an EEA decision and was thus appealable to the tribunal in the ordinary way. Sir Terence Etherton MR concurred with both judgments.

Comment

Sala is a retrograde example of judge made law that sought to victimise foreigners. Its effects must have deprived thousands of people of the right to appeal. Upper Tribunal Judge Andrew Grubb, who sat alongside CMG Ockelton in Sala, is a very decent and compassionate man. I recently appeared before UTJ Grubb in an EU citizen’s deportation case. After being tried in the Old Bailey, our charming Lithuanian client had been sentenced to 9 years’ imprisonment for firearms offences, armed robbery and blackmail. His victim, from whom he had sought to recover £150,000 for the mafia, is still in witness protection.

He had repeatedly re-entered the UK in breach of a deportation order and was repeatedly removed. But his relationship with his new partner had changed everything. She had turned his life around and he was dedicated to their son and put a very high value on his relationship with both of them. He also regularly cared for his little nephew. Nevertheless, so revolting was his presence on UK territory that when the First-tier Tribunal allowed his appeal because the threat he posed was not “present”, the Home Office got permission to appeal on the papers on completely unarguable “wing and prayer” grounds.

UTJ Grubb said: “I can see that you’ve done a lot of work on this appeal Mr Khan, but I will not be calling on you today … the secretary of state’s appeal is dismissed and she should never have been granted permission to appeal in the first place.” I was a bit surprised when he made it a point to speak directly to the children involved in the case by asking them whether they got bored waiting for our turn to be called.

But despite all this, as Sala demonstrates, UTJ Grubb tends to have a mean streak when he is sitting in the shadow of CMG Ockelton (who, with the appointment of Peter Lane as tribunal president, it seems will remain vice president until retirement). Another variant of the victimisation seen in Sala can be found in Amirteymour & Ors (EEA Appeals: Human Rights) [2015] UKUT 466 (IAC). The decision, which has been upheld in the Court of Appeal by none other than the feared Sales LJ, stipulates that where no notice under section 120 of the 2002 Act has been served and where no EEA decision to remove has been made, an appellant cannot bring a human rights challenge to removal in an appeal under the EEA Regulations.

Finally, in Khan’s case, the Court of Appeal refused the Home Office permission to appeal to the Supreme Court. The case will be remitted to the tribunal after the Supreme Court gives judgment in the pending appeal in SM (Algeria) (Appellant) v Entry Clearance Officer, UK Visa Section (Respondent) – see case preview.