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)  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). Continue reading