No right of appeal against refusal of residence card to EFM

‘’A preliminary issue was raised at the hearing in relation to whether the First Tier Tribunal had jurisdiction to decide this appeal. HOPO relied on the recent decision in the case of Sala (EFMs: Right of appeal) [2016] UKUT 00411 (IAC). Representing Barrister sought to persuade me that I did have jurisdiction in that the process involved two stages where initially secretary of state has to decide whether the applicant could meet the requirements in the Regulation 8 and if so then has to exercise a discretion. In this appeal he submitted the question of whether the Appellant had met regulation 8 was the issue and the Tribunal would have to consider the scope of its powers to remake or remit the decision back to the Respondent for the exercise of her discretion.’’

‘’ I indicated to (my Barrister) at this point that I was not with him in this argument and my understanding of Sala was that there was simply no right of appeal at all to the first tribunal but rather challenge lay with Judicial Review. He then asked me for the time to consider his position with the Appellant which I granted.’’

‘’On return he then sought to make a further argument based on firstly the Appellant's legitimate and secondly on the basis that the Immigration (European Economic Area) Regulations 2006 were not faithful to the Citizens Directive. In particular the Citizens Directive in Article 2 made no distinction between family members whereas the 2006 Regulations did distinguish between direct and extended family members. He also referred to Articles 8 and 9 in relation to issue of residence cards. In brief he argued that I should follow the Citizens Directive and therefore I would have jurisdiction to determine whether or not the Appellant met Regulation 8.’’

‘’At that fine I declined to give an immediate decision but to avoid the Appellant having to return for another hearing in event I agreed with Barrister. 1 proceeded to hear the evidence. At the end of hearing I reserved my decision. Barrister asked me in the event I found there was no right of appeal that I should nonetheless make findings of fact and I indicated I would do so.’’

‘’I have very carefully considered the submissions made by Barrister and decision in Sala. I have considered specifically 23 paragraph of the case which states

It was not suggested before us that our domestic law in the EEA Regulations 2006 is, in any way, inconsistent With the provisions of the Citizens Directive. Further, if no right of appeal exist, Ben judicial review Will lie as the remedy. In Rahman the court made clear that a full merit-based was appeal was not required by the Citizens Directive; only a judicial review to ensure that the decision-maker has ‘’remained within the limits if the discretion set by [the] directive’’ (see[25]).

26. It will clear from this analysis that for EFMs recognition of their rights of admission and residence is conditional upon relevant document, whether family permit, registration certificate— or residence card, being issued under EEA Regulations 2006 (see, Aladeselu and others v SSHD [2013] EWCA Civ 144 at [152]). This, of course, contracts position of "family members' who 'derive their rights of admission and residence directly from the EU law and the relevant documentation is merely evidence of right. This is important EEA Regulations 2006 see the rights of family members and EFMs in different ways.

The rights of family members derives from the Citizens Directive, those of EFMs from national law apart from procedural right to have their applications determined following extensive examination of their personal circumstances. Family members have the rights independent of being issued with a resident card. EFMs' rights, if any, derive from the exercise of the Secretary of the State’s discretion to issue (and allow them to keep) a resident card; their substantive rights to arise only after the card is issued.’’

Therefore my understanding of the decision is that the Upper Tribunal was considering whether UK law give a right appeal to extended family members who are refused residence cards. They noted the Review was available and provided an effective remedy in terms of Article 32 of Citizens There was no right of appeal against a decision under Regulation 8 in relation to Extended family members.

It has not been argued the Appellant is anything than an extended family member; he is the nephew of the EEA national. As such he therefore has right of appeal to the First Tier Tribunal against the Respondents decision; his remedy lie Judicial Review.

As I mentioned above Barrister asked that I make findings of fact but with hindsight I am not satisfied that it is appropriate for me to do so. Having found there is no jurisdiction there can be no findings of fact and I can come to no decision on the issues raised in the decision of the Respondent.
Finally in relation to the argument Appellant had a legitimate expectation the basis of the right of appeal indicated in Respondent’s decision I have had regard to the Senior President of Tribunal's Practice Statement (13th November 2014)

Which states:

3.4 The Fact that a hearing date may have given to the parties does not mean that appeal must be treated as valid. Accordingly, if at a hearing (including a CMR hearing) it transpires that the notice of that appeal does not relate to a decision against which there is, in the circumstances, an exercisable right of appeal, the Tribunal must so find; but it will so in the form of determination, rather than by means of a notice under First-tier rule 22.

Therefore having found the appeal is invalid and while understanding the Appellant’s position and belief he had a right of appeal I am not satisfied that any expectation he had enables this Tribunal to entertain his appeal.

In conclusion I am satisfied there is no right of appeal and it is dismissed for want of jurisdiction.

NOTICE OF DECISION

There is no valid appeal and therefore it is dismissed for want jurisdiction.

No anonymity direction is made.