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SALA OVERTURNED BY COURT OF APPEAL NO LONGER GOOD LAW
Posted: Wed Sep 21, 2016 2:17 am
by vinny
Opinion in Banger
No statutory right of appeal against a decision to refuse to grant a Residence Card to an Extended Family Member >
Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC)
Amazingly,
freemovement Participant wrote:On an ‘obiter’ note, strange how the judges forced the parties to this conclusion. At the first hearing, both parties (including HO) agreed there was a right of appeal, but this clearly didn’t satisfy the judges. The judges then asked for third counsel, who was specifically instructed to argue that there was no right of appeal. Then the judges decided that she was indeed correct and there was no right of appeal…
Re: No right of appeal against refusal of residence card to
Posted: Wed Sep 21, 2016 5:38 am
by secret.simon
Is this judgment likely to be appealed to either the ECJ/CJEU or the ECHR (as it impacts access to justice)?
In an objective assessment, would you assess that EFM applications are now more likely to be rejected by the Home Office?
UPPER TRIBUNAL RULED THAT EFM HAVE NO RIGHT OF APPEAL
Posted: Wed Sep 21, 2016 12:25 pm
by Obie
It is with great sadness that i inform the Forum that the Upper Tribunal has ruled that an Extended family member has no right of Appeal against the refusal of residence card.
After decades of Extended family member having a right of appeal, the Upper Tribunal has ruled that this is wrong and they never should have had an appeal.
Saying this is absurd does not begin to define the ridiculous nature of the decision.
It is advised that Extended Family with appeal in the pipeline must seek legal advise without delay, as this is likely to cause issues for them.
Strangely, even the Home Office does not appear to accept the position of the Upper Tribunal.
I am busy at present, but i shall add more to this thread, as and when i find time.
http://www.bailii.org/uk/cases/UKUT/IAC/2016/411.html
Re: No right of appeal against refusal of residence card to
Posted: Wed Sep 21, 2016 12:50 pm
by Obie
Vinny i apologise, i did not know you had already reported it.
As it is an issue of immense importance, I suggest we put it on Sticky, unless you have any objections.
Re: No right of appeal against refusal of residence card to
Posted: Wed Sep 21, 2016 12:56 pm
by Obie
It is safe to assume that the Upper Tribunal is unfit for purpose. If not checked it his the potential of bringing the Judicial process into complete state of disrepute.
I am associated with 2 matter for which permission has been granted by the UT.
Not sure if the Upper Tribunal will allow it to be heard now.
This is a total embarassment.
Even the Judge who did this, has indeed ruled in AP that an EFM does have a right of Appeal.
Regulation 26(2A) lives no doubt in anyone mind that they do have a right of appeal.
This is appalling.
Re: No right of appeal against refusal of residence card to
Posted: Thu Sep 22, 2016 12:55 am
by vinny
Re: No right of appeal against refusal of residence card to
Posted: Thu Sep 22, 2016 4:05 pm
by Obie
HOME OFFICE ISSUE NEW GUIDANCE FOR OFM.
[b]HOME OFFICE ISSUE NEW GUIDANCE FOR OFM[/b] wrote:Appeal rights for relatives
If you refuse an application from an extended family member for residency documentation such as a residence card, that decision does not attract a right of appeal, as it is not an ’EEA decision’ as defined in regulation 2 of the EEA regulations.
Appeal rights for durable partners
If you refuse an application from an extended family member for residency documentation such as a residence card, there is no right of appeal against this decision, as it is not an ’EEA decision’ as defined in regulation 2.
That was pretty quick.
Re: No right of appeal against refusal of residence card to
Posted: Thu Sep 22, 2016 5:02 pm
by Obie
[b]No right of appeal for ‘Extended Family Members’ of EEA nationals[/b] wrote:What is also pretty remarkable in this case is that both the representative for the appellant and for the respondent (the Home Office) argued that there was a right of appeal. However the UT, consisting of Mr Ockelton the Vice President and Professor Grubb, decided after hearing these submissions that it still harboured doubts about whether there was in fact a right of appeal, and asked for the Attorney General to supply counsel to act as a friend of the court to present the contrary view (not a common occurrence).
Re: No right of appeal against refusal of residence card to
Posted: Thu Sep 22, 2016 8:00 pm
by malik0543
HI Obie
i am surprised how court/ tribunal can grant relief which were never sought ?
right of appeal was not a matter of dispute in parties.
i think this is planted, as too many people applying for EFM, so they want to stop and look at the speed of UKVI they have amend the guidance straightway !!!!! as they were aware of the decision before...........
anyway this is very bad and disappointed.
any chance someone challenge this decision ?
Re: No right of appeal against refusal of residence card to
Posted: Thu Sep 22, 2016 8:46 pm
by Obie
There is a very high possibility that the matter will reach the court of Appeal.
I know of over 10 people who have been granted permission to appeal to the Upper Tribunal. These people have invested thousands in their case, only to be told by a bent Upper Tribunal Judge that they don't have a right of appeal.
I am associated with a Secretary of State appeal against an Extended family member, which was allowed by the FTT. Does this mean the appeal will be nullified . Clearly not. If such a scenerio was to occur, then a grieving party will have no option but to file an appeal notice in England and Wales.
It is a possibility that the Upper Tribunal will refuse to admit an application for permission to appeal to the Court of Appeal. Therefore one will need to apply to the Court of Appeal.
What about all the case laws that has developed over the years through the appeal system. Will the Home office be entitled to argue that those unfavourable cases are invalid as the court of appeal did not have jurisdiction.
The UK judicial system is problematic.
The standard is going below that of a 3rd world country.
Re: No right of appeal against refusal of residence card to
Posted: Mon Sep 26, 2016 10:14 pm
by Obie
The Upper Tribunal has started to dismiss appeal to people who have been granted permission to appeal.
Applicant or affected people are reminded that a decision to decline jurisdiction is not an excluded, and appellant are reminded that they are entitled to lodge and appeal to the Court of Appeal, and file a JR with the Tribunal at the same time.
Also see
Abiyat.
Re: No right of appeal against refusal of residence card to
Posted: Wed Oct 05, 2016 4:51 pm
by Amen
Hello Guys,
So what will happen to those that have outstanding appeal hearing with first Tier Tribunal before this?
Re: No right of appeal against refusal of residence card to
Posted: Thu Oct 06, 2016 5:43 pm
by Frank001
Amen wrote:Hello Guys,
So what will happen to those that have outstanding appeal hearing with first Tier Tribunal before this?
i have the same question .i have outstanding hearing date ,i got hearing date i don't know what will happen any body pls advise
Re: No right of appeal against refusal of residence card to
Posted: Thu Oct 06, 2016 6:30 pm
by Frank001
Obie wrote:HOME OFFICE ISSUE NEW GUIDANCE FOR OFM.
[b]HOME OFFICE ISSUE NEW GUIDANCE FOR OFM[/b] wrote:Appeal rights for relatives
If you refuse an application from an extended family member for residency documentation such as a residence card, that decision does not attract a right of appeal, as it is not an ’EEA decision’ as defined in regulation 2 of the EEA regulations.
Appeal rights for durable partners
If you refuse an application from an extended family member for residency documentation such as a residence card, there is no right of appeal against this decision, as it is not an ’EEA decision’ as defined in regulation 2.
That was pretty quick.
what will happen whoever got appeal date ? i got appeal date please help
Re: No right of appeal against refusal of residence card to
Posted: Thu Oct 06, 2016 6:39 pm
by Obie
Was in Field House today, argued that Sala was not properly decided before a senior Judicial Officer.
He listen attentively, and said he will give proper consideration to the submission.
Informed him that Sala was wrongly decided and not binding, and that he should hear the appeal.
He was nervous, HOPO was piling pressure.
However Home Office and Judicial officer, accepted that the decision of the FTT did contain an Error of law, if i am able to overcome Sala.
We shall see. Will try and fight SALA with every fibre in my being, but at present, most judges are of the view that it is the law of the land.
Re: No right of appeal against refusal of residence card to
Posted: Thu Oct 06, 2016 6:42 pm
by Frank001
Obie wrote:Was in Field House today, argued that Sala was not properly decided before a senior Judicial Officer.
He listen attentively, and said he will give proper consideration to the submission.
Informed him that Sala was wrongly decided and not binding, and that he should hear the appeal.
He was nervous, HOPO was piling pressure.
However Home Office and Judicial officer, accepted that the decision of the FTT did contain an Error of law, if i am able to overcome Sala.
We shall see. Will try and fight SALA with every fibre in my being, but at present, most judges are of the view that it is the law of the land.
but what about that whoever has appeal hearing date?what will be situation please describe
Re: No right of appeal against refusal of residence card to
Posted: Thu Oct 06, 2016 9:16 pm
by Obie
It depends on where your appeal is. Most FTT judges have refused to accept appeal for lack of Jurisdiction.
Re: No right of appeal against refusal of residence card to
Posted: Thu Oct 06, 2016 9:33 pm
by Frank001
[/code]
Obie wrote:It depends on where your appeal is. Most FTT judges have refused to accept appeal for lack of Jurisdiction.
what do u mean where is appeal is? sorry I'm new here .its in first tier tribunal .so what i expect ?
Re: No right of appeal against refusal of residence card to
Posted: Fri Oct 14, 2016 2:27 pm
by Frank001
Obie wrote:Was in Field House today, argued that Sala was not properly decided before a senior Judicial Officer.
He listen attentively, and said he will give proper consideration to the submission.
Informed him that Sala was wrongly decided and not binding, and that he should hear the appeal.
He was nervous, HOPO was piling pressure.
However Home Office and Judicial officer, accepted that the decision of the FTT did contain an Error of law, if i am able to overcome Sala.
We shall see. Will try and fight SALA with every fibre in my being, but at present, most judges are of the view that it is the law of the land.
ANY UPDATE SO FAR ?? PLEASE SHARE
Re: No right of appeal against refusal of residence card to
Posted: Fri Oct 14, 2016 4:20 pm
by Obie
Unfortunately appeal was dismissed for lack of Jurisdiction.
Judge acknowledged that she is not bound by SALA but feels the need to follow it, even though she concede that the grounds of appeal, and my challenge against SALA were made out.
Will be going to the court of Appeal, unless the matter is reviewed under Section 46 of the Upper Tribunal Procedure rule 2008.
The decision was a partial victory, as both Judge and SSHD conceded, that had it not been for SALA, the decision ought to be set aside and the appeal allowed.
Re: No right of appeal against refusal of residence card to
Posted: Fri Oct 14, 2016 6:13 pm
by Frank001
Obie wrote:Unfortunately appeal was dismissed for lack of Jurisdiction.
Judge acknowledged that she is not bound by SALA but feels the need to follow it, even though she concede that the grounds of appeal, and my challenge against SALA were made out.
Will be going to the court of Appeal, unless the matter is reviewed under Section 46 of the Upper Tribunal Procedure rule 2008.
The decision was a partial victory, as both Judge and SSHD conceded, that had it not been for SALA, the decision ought to be set aside and the appeal allowed.
I DONT KNOW HOW MY LAWYER WILL DEAL WITH THAT!!! REALLY STRESSED ,IF APPEAL IS UNSUCCESSFUL DONT KNOW WHAT IS THE BEST OPTION TO DO
Re: No right of appeal against refusal of residence card to
Posted: Fri Oct 14, 2016 6:14 pm
by Obie
He will discus your options with you I guess .
Re: No right of appeal against refusal of residence card to
Posted: Fri Oct 14, 2016 6:23 pm
by Frank001
Obie wrote:He will discus your options with you I guess .
MY APPEAL HEARING IS NEXT WEEK DIDN'T STILL KNOW WHAT KIND OF POINT HE WILL MAKE . THATS THE RAESON COMING HERE TO HEAR/KNOW SOMETHING.NO GUIDANCE FROM HIS SIDE.THEY REFUSED BASED ON INTERVIEW NOTHING ABOUT DOCUMENTS .ANY ADVISE FOR ME FROM U PLEASE ???
LOOKING FOR BETTER LAYWER ,REALLY FRUSTRATED .
Re: No right of appeal against refusal of residence card to
Posted: Fri Oct 14, 2016 6:29 pm
by Obie
Please desist from writing in capital letters.
I am not sure if I can give more than I have already given.
It is a shame in your case, that matter is at Ftt. Due to the fact that mine was at the Upper Tribunal with permission, I am able to appeal to the court of appeal.
If my argument succeeds, it will benefit you aswell.
You will be able to challenge via JR if the FTT refuse to hear the case.
Re: No right of appeal against refusal of residence card to
Posted: Fri Oct 14, 2016 6:39 pm
by Frank001
Obie wrote:Please desist from writing in capital letters.
I am not sure if I can give more than I have already given.
It is a shame in your case, that matter is at Ftt. Due to the fact that mine was at the Upper Tribunal with permission, I am able to appeal to the court of appeal.
If my argument succeeds, it will benefit you aswell.
You will be able to challenge via JR if the FTT refuse to hear the case.
sorry i don't know is it ok to ask or not ..if anything negative happen ,can i talk to u privately about my case or any recommendation for lawyer