EEA Family Permit and death of the Appellant

[a.s.b.o]

I am an Irish national residing in UK. My parents - non-EEA nationals - are with me in UK on foot of EEA Residence cards which they obtained through their dependence on me. In 2015, when my parents joined me in UK, I applied for an EEA Family Permit for my non-EEA grandfather to come and join me in UK too. His Entry Clearance (EEA FP) application was refused, we appealed and the appeal took more than 18 months to come through. My grandfather died in the interim.

I am determined to go ahead with the appeal. The case was today dismissed due to the 'death of the appellant' meaning that there was 'no case to look into today'. The judge, in dismissing our case, acknowledged that EEA regulations do not state explicitly deal with issues pertaining to the death of the appellant and dealing with such cases. She was, however, of the view that I cannot establish his dependence on EEA sponsor (myself) on the day of hearing (today). She did not accept that I am in a position to provide evidence to his dependence up until his death.

This is very emotional for the whole family. It is a very tricky question but would someone shed some light on at least some aspects of EEA legislation that may be applicable to our case. I am determined to establish what was rightfully taken away from us and I could not enjoy the last 6 months of his life due to this refusal.

[secret.simon]

I believe (if I am wrong, I am sure I will be corrected by people more learned than me) that in order for a lawsuit/appeal to proceed under English law, there must be an actual dispute for the court to look into. The courts won't look into a hypothetical issue of what could have been if...

As your grandfather is deceased, he can not be granted an EEA FP and hence there is no suit for the court to adjudicate on. That is to say, there is no actual dispute here, but a hypothetical dispute about the grant of an FP that can not in actual fact be issued now.

This has got nothing to do with the EEA Regulations and has to do with basic tenets of common law, which is about a thousand years old. Irish law, based on the same foundations, would, to the best of my knowledge, follow the same course. Scots law may be different in this regards, being a hybrid system. So, which court were you taking action against the Home Office in?

I believe that the concept of mootness in US law is based on the same logic, though its basis is also in the US constitution.

PS: Some quick research has found that the term to search for is "abatement at law" or "abatement of suit" in English (and Irish) law (moot meaning something entirely different in British English and American English).

Another way of looking at the situation is that the courts are not there to provide recourse for emotional hurt. They are there, just like Home Office caseworkers, to look at the law and , in the case of the judiciary, to instruct the executive on how to apply it. If there is nothing for the executive to apply/do with the judgement, there is nothing for the judiciary to do. It is much better that a case that will lead to no outcome (but emotional satisfaction) be replaced by a case that can have an impact on living people's future lives.