Bye-bye Sala? Relatives of EEA nationals score victory as Court overturns decision that denied them appeal rights

Sala‘s a case that won’t be much missed.

In a move by now notorious among practitioners, in a case titled Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC), the Vice President of the Upper Tribunal decided that the extended family members of EEA nationals could not appeal against the refusal to grant them residence documents under the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (‘the EEA Regulations’).

This was despite agreement at the original hearing between the Home Office and claimant lawyers that the legal framework contained a right of appeal. That didn’t stop the Home Office quickly changing their policies to reflect Sala and to solidify the denial of appeal rights in the re-jigged 2016 EEA regulations.

This decision affected large numbers of individuals, including unmarried partners of EEA nationals plus other relatives. Clients with ongoing appeals had them struck out. Those who were refused residence documents were told they could not appeal and would have to argue that the refusals were unlawful or irrational on expensive and risky judicial review claims. The situation for many seemed hopeless.

That’s until now.

Court of Appeal is hearing the Sala Jurisdiction appeal today. I appear for the Appellant alongside R DeMello. Will update. #ukimmigration

— Rajiv Sharma (@Raj_Sharma_UK) October 12, 2017

Big news – We were successful in overturning Sala. CA confirm 2006 Regs confer RoA to EFM. I appeared for the Appellant alongside R DeMello.

— Rajiv Sharma (@Raj_Sharma_UK) October 12, 2017

A legal team including Rajiv Sharma of the 36 Group led by Ramby De Mello of No 5 Chambers instructed by Stella Maris Solicitors have won their Court of Appeal challenge to Sala. A written judgement is eagerly awaited and I will try to post again once that’s available (or better still, get Rajiv to post about it). For now, we have this update from Rajiv:

The Court of Appeal (MR, LJ Longmore, LJ Irwin) heard the appeal against the findings in Sala. Those findings, briefly, are that by virtue of the discretion available to a decision-maker under Regulation 17 of the 2006 Regulations, a decision on an application under Regulations 8 is not a decision which concerns the applicant’s entitlement to be issued with a residence card and is therefore not an “EEA Decision” under Regulation 2 and so is not appealable under Regulations 26.

Our position for the Appellant was the same as the appellant’s position in Sala; that the Regulations provide a right of appeal against an adverse decision on a regulation 8 application which is an EEA Decision. The Respondent’s position had changed, however, from her position in Sala before the Upper Tribunal. The position in Sala was the same as our present position. She now contended (as is consistent with her updated guidance and the 2016 Regulations) that there is no right of appeal.

The Court, having adjourned the matter in July, had allocated a day prior to the hearing for pre-reading. Evidently this time had been well spent because the Court had established a road-map of the issues upon which they wanted to be addressed. They wanted to hear submissions on interpretation of the Regulations in isolation i.e. Without reference to the Directive/Treaty before deciding if they needed to hear anything else.

Our submissions took us to just before lunch. The Court, particularly the MR and Irwin LJ, were perplexed with the drafting of the Regulations (not the first time the Court have had issues with the drafting of Regulations, Rules or Legislation in this Jurisdiction). The Respondent’s submissions started before lunch. We broke for lunch after the Respondent’s Lead Counsel (B Kennelly QC) suggested that Regulation 21, despite specifically referring EEA Decisions under that regulation, did not mean that a decision under that regulation was an EEA Decision.

After lunch the Court heard a submission that reference to public policy grounds in Regulation 20 had no connection to the public policy grounds in Regulation 21. Counsel was then asked, in the absence of direct authority to support his position, had any submissions to rebut the provisions referred to by the Appellant.

The Court (particularly Longmore LJ) enquired why the Respondent’s position had changed from the submissions she made in Sala. Specifically, Longmore LJ, asked what is was about an EFM having a right of appeal that scared the SSHD. This, being a policy decision, was not within the remit of Counsel for the Respondent to answer.

I pause here to suggest that the policy behind this change of heart goes to the underlying ‘hostile environment’ that the SSHD (including her predecessor) wishes to create for certain immigrants; the fewer rights of appeal that exist, the lower the number of ‘migrants’ that will be able to fully pursue any legitimate claims to remain in the Country.

There was an interesting concession from B Kennelly QC that the 2016 Regulations were drafted as a result of the decision Sala. Following which there was a brief reply from Lead Counsel for the Appellant (Ramby DeMello) following which the Court decided to rise to consider how best to proceed. After a short period they re-entered and informed us that the appeal would be allowed on the interpretation ground. They did not need to hear from us on the other grounds – those grounds include matters relevant to a challenge to the 2016 regulations, if necessary.

The effect of the decision is that all those appeals pending under the 2006 Regulations should now be able to proceed. Those that have resulted in notices of invalid appeal will need to be challenged. This point may be slightly academic now, in the sense that only the 2006 Regulations are directly affected, but the path to a challenge to the 2016 Regulations now exists.

A written decision is to follow so watch this space for further detailed analysis.

Before closing I would like to make a brief comment about the camaraderie I have witnessed at the Bar whilst dealing with this appeal. From Declan at Landmark Chambers (Counsel in Sala), to Zane and Parminder at 12OS, Alex at 1 Pump Court (formerly at Mansfield 1GiS) and both Ramby and Manjit at No 5 (and probably others) and Colin through the freemovement.org blog many people have been very open to brainstorming ideas about properly formulating this challenge. The Bar is a competitive place but it is good to see that so many people can work together to achieving an ultimately beneficial end.

In discussions on LinkedIn, Farhad Ansari of Duncan Lewis raised the interesting question of how this decision may affect the forthcoming UK Supreme Court judgment in SM (Algeria) (Appellant) v Entry Clearance Officer, UK Visa Section, which could affect the position.

Also on the horizon is a reference to the Court of Justice of the European Union (‘CJEU’) by former President McCloskey and UTJ Rimington in Banger (Unmarried Partner of British National) [2017] UKUT 00125 (IAC). That reference asked, among other things, about whether EEA extended family members can be lawfully denied a right of appeal.

At least for the time being, the answer appears to be an emphatic ‘No’.