non EEA (PR) EFM appeal SALA problem - what to do

[noneeadory]

Hi everybody, please help.

My appeal hearing at the First-tier Tribunal was on 3rd August 2017 - I was previously refused Permanent Residence and appealed.

I am a non EEA national sponsored by my niece EEA national (Extended Family Member).

It looks like the judge is going to say that there is no right of appeal based on the 'Sala' ruling.

If that happens, what can I do?

Am I allowed to reapply for Permanent Residence (a fresh application) or do i have to make a Judicial Review?

Really worried as I don't know what to do next.

Thank you for your advice.

Dory

[noneeadory]

Hi everybody,

Is there anybody that can help with my question?

If my appeal at ftt is refused due to Sala, what options do I have?

Please help, thank you,
Dory

[Obie]

It should not be refused because of Sala, as Sala does not apply to your case, as a Residence Card had already been issued. The person is then a family member under Regulation 7(3).

[Richard W]

... and so the entitlement to permanent residence remains even though the person ceases to be a family member (Regulation 7(3)(b)) when the card expires.

(I thought I should spell it out, as the use of 'is' rather than 'was' confused me and may confuse others.)

[Obie]

Well the rational of SALA is in regards to a person applying for a discretionary issue under Regulation 18(4)(5).

My point is, at the time of Regulation 15(1)(b), the person has had a residence card for 5 years, there is not question of discretionary, as the discretionary had already been exercised, and he has held the regulation 7(3) rights for a period of 5 year.

Therefore the question is whether the person met the terms of regulation 8(2), during the 5 years period, and if he or she does, then the right has been automatically acquired, even if the residence card has expired.

That rational is different from an EFM who has never been issued a residence card before.

[noneeadory]

Thank you for your replies about 'Sala' not applying in my case.

Until I receive the Judge's decision I am still concerned because the Home Office tried at the hearing to get the Judge to rule 'no jurisdiction due to Sala'.

He refused saying that it didn't apply as this was under 'Regulation 7' now and the Home Office stated that they disagreed with this and would take no further part in the Appeal (due to the Judge having no jurisdiction) - they walked out and the Judge continued the Appeal.

The 2 points of the initial PR refusal were looked at:
- 1) EEA sponsor not enough documents to show 'qualified' - we had applied on the basis that the EEA sponsor was already with permanent residence - Judge AGREED with us and
- 2) We didn't apply on dependency of EEA sponsor (as I work) but on membership of same household as EEA sponsor (as I live with them) - Judge AGREED that all the documents that I had previously submitted to the Home Office which had satisfied them that I had been residing in the United Kingdom for 5 continuous years were also to be accepted as proof that I had been residing together with them in the same household based on 'official correspondence addressed to me at the household' being acceptable proof.

That in itself is the good side of the appeal but it was the Home Office's stance of seeming to try anything that worried me.

Even after walking out of the appeal they tried during the lunch break to further annoy the appeal by approaching the judge and saying that Regulation 7 didn't apply because the 5 year Residence Card expired on 29 September 2015, that 'today' is 3 August 2017 and that for Regulation 7 to apply the Residence Card needed to be valid - and therefore 'Sala' applied.

The judge told us about this approach and said that his answer was that the date of 29 September 2015 was the date of the expiry of the 'sticker' not the entitlement.

At the end the Judge mentioned that he felt positive towards our appeal but would naturally have to look at the point of Sala and Regulation 7 carefully and to talk to other colleagues about this before making his final ruling.

So until we receive his letter I am still worried about the outcome, especially as the Home Office were so intent on having our appeal thrown out.

If for some strange reason the Judge does (incorrectly) rule Sala applies and throws our appeal out - what would I be able to do next and what time limits would I have to do it.

Would I be able to simply put in another PR application or would I have to go to another level such as Judicial Review?

Common sense says that this shouldn't be necessary but the Home Office are simply not acting normally.

Thanks again Obie for replying, it's great to have someone with your knowledge to discuss this with. Much appreciated,
Dory

[DFDS.]

Thank you for your replies about 'Sala' not applying in my case.

Until I receive the Judge's decision I am still concerned because the Home Office tried at the hearing to get the Judge to rule 'no jurisdiction due to Sala'.

He refused saying that it didn't apply as this was under 'Regulation 7' now and the Home Office stated that they disagreed with this and would take no further part in the Appeal (due to the Judge having no jurisdiction) - they walked out and the Judge continued the Appeal.

The 2 points of the initial PR refusal were looked at:
- 1) EEA sponsor not enough documents to show 'qualified' - we had applied on the basis that the EEA sponsor was already with permanent residence - Judge AGREED with us and
- 2) We didn't apply on dependency of EEA sponsor (as I work) but on membership of same household as EEA sponsor (as I live with them) - Judge AGREED that all the documents that I had previously submitted to the Home Office which had satisfied them that I had been residing in the United Kingdom for 5 continuous years were also to be accepted as proof that I had been residing together with them in the same household based on 'official correspondence addressed to me at the household' being acceptable proof.

That in itself is the good side of the appeal but it was the Home Office's stance of seeming to try anything that worried me.

Even after walking out of the appeal they tried during the lunch break to further annoy the appeal by approaching the judge and saying that Regulation 7 didn't apply because the 5 year Residence Card expired on 29 September 2015, that 'today' is 3 August 2017 and that for Regulation 7 to apply the Residence Card needed to be valid - and therefore 'Sala' applied.

The judge told us about this approach and said that his answer was that the date of 29 September 2015 was the date of the expiry of the 'sticker' not the entitlement.

At the end the Judge mentioned that he felt positive towards our appeal but would naturally have to look at the point of Sala and Regulation 7 carefully and to talk to other colleagues about this before making his final ruling.

So until we receive his letter I am still worried about the outcome, especially as the Home Office were so intent on having our appeal thrown out.

If for some strange reason the Judge does (incorrectly) rule Sala applies and throws our appeal out - what would I be able to do next and what time limits would I have to do it.

Would I be able to simply put in another PR application or would I have to go to another level such as Judicial Review?

Common sense says that this shouldn't be necessary but the Home Office are simply not acting normally.

Thanks again Obie for replying, it's great to have someone with your knowledge to discuss this with. Much appreciated,
Dory

Something must be morally wrong with this department!

[Richard W]

Even after walking out of the appeal they tried during the lunch break to further annoy the appeal by approaching the judge and saying that Regulation 7 didn't apply because the 5 year Residence Card expired on 29 September 2015, that 'today' is 3 August 2017 and that for Regulation 7 to apply the Residence Card needed to be valid - and therefore 'Sala' applied.

The judge told us about this approach and said that his answer was that the date of 29 September 2015 was the date of the expiry of the 'sticker' not the entitlement.

The judges reasoning is worrying, as the date of expiry of the card is indeed the date of expiry of the status of family member.

If the regulations were in English (which is in fact dubious - they are in a langague, 'Legalese', which I believe has its own rules of semantics), a correct answer is that you are not appealing on the basis of being a family member (via EFM plus issue of a card), but on the basis of having been one.

If the regulation on the right of appeal, now 36(4) but formerly 26(3) is moved back, as part of its interpretation, to the time of the right of permanent residence allegedly being acquired, it seems unnatural to disallow any appeal because the card would expire by the time the acquisition of the right was being debated. If such interpretation were valid, the holding of a 'qualifying EEA state residence card', which can be relevant in 2016 Regulation 36 (2006 Regulation 26), would also ultimately be of no avail, for that document too will ultimately expire.

[Obie]

Richard I agree with the Judges thinking 100%. It is yours that worries and troubles me. I tried to clarify things previously, but you are simply getting yourself into a muddle.

The rational behind Sala, which is a very flawed one anyway, is this:

1. If a person is seeking a Residence Card under Regulation 18(4) and 18(5), they have no entitlement to it, they are seeking a positive discretion, therefore a right of appeal does not exist, as Regulation 2 refers to an EEA decision as a decision against an entitlement.

(b)a person’s entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card (but does not include a decision that an application for the above documentation is invalid)

At regulation 15(1)(b), the issue of discretion does not arise, it is a question of entitlement. The person has held a residence Card under Regulation 7(3) for 5 years, and the question now is whether they have met all the conditions in regulation 8(2) during that time.

Therefore the situation at the PR stages is very different.

The Judge is correct, the HOPO acted in a very disgraceful manner, and he or she ought to be reprimanded.

Irrespective of whether he agrees with the tribunal, he or she has no right to work out of the tribunal.

There are times when i have met hostile judges, i feel like walking, i know they are chatting bull**** but you don't simply walk out, the Home office have the Specialist appeal team to deal with a decision they do not agree with.

60% of times i go to tribunal, i sense that i am not fighting 1 but 2 people at a time, ie, the Judge and the Home Office, i feel under siege, but one has to respect the integrity of the court or tribunal, and understand that the judge is not the court or tribunal, but simply exercising its power, and if he does so in an inappropriate way, there will be a remedy.

The Presenting officer is not a legal officer, they can't in all fairness claim to know the law more than the judge, and on this occasion, the Presenting officer was clearly wrong, the Judge was correct all the step of the way, and i only hope it was not the Home Office that orders there officers to do this, as it will be double troubling.

[Richard W]

Richard I agree with the Judges thinking 100%. It is yours that worries and troubles me. I tried to clarify things previously, but you are simply getting yourself into a muddle.

The disagreement depends on understanding what the judge meant by 'entitlement'. If he meant 'entitlement to a permanent residence card', then there is not a problem.

Is there a legal construct of an 'entitlement to remain in the UK'? I'm wondering on what basis an attempt to remove someone under the purely UK laws and regulations as opposed to the EEA regulations may be challenged. Would such a challenge be constrained by Regulation 36?

In terms of the 2016 regulations, you seem to be looking at the definition of an 'EEA decision' in Regulation 2(1). Possession of a residence card has no immediate bearing on this regulation.

I was looking at the prerequisites for a right of appeal in Regulation 36, particularly 36(4)(b)(iii), which is how one might conceive of Regulation 7 being relevant. The HOPO's argument seems to be that the OP's RC has expired, and therefore he can no longer prove he is a family member, and therefore has no right of appeal. The HOPO's conception, assuming he has one, seems to be that the OP is applying for a permanent residence card as a family member - as opposed to having been one. This seems to be based on the flawed assumption that anyone claiming permanent residence would fit into one of the categories listed in Regulation 36. (A fairly obvious omission is someone who has long been a permanent resident.)

[Obie]

The appeal relates to Permanent Residence, even if it relates to residence, the person will continue to have a right.

I am not sure your position and interpretation is consist with that of the Tribunal in Ewulo.

Also see Ewulo (effect of family permit – OFM) Nigeria [2012] UKUT 238 (IAC) (13 July 2012) .

[Richard W]

The appeal relates to Permanent Residence, even if it relates to residence, the person will continue to have a right.

We both think the HOPO's arguments are wrong.

I am not sure your position and interpretation is consist with that of the Tribunal in Ewulo.

Also see Ewulo (effect of family permit – OFM) Nigeria [2012] UKUT 238 (IAC) (13 July 2012) .

I'm not sure what point you're making. At the time of the judgement, Regulation 26(3) read:

If a person claims to be the family member or relative of an EEA national he may not appeal under these Regulations unless he produces—
(a) an EEA family permit; or
(b) other proof that he is related as claimed to an EEA national.

Such proof was provided.

What I may have overlooked is the EEA family permit. Should an expired one suffice? In Ewolu, it is possible that the family permit may not have expired when the appeal was made.

It is likely that the OP has a long-expired EEA family permit.

[Obie]

That is wrong. In Ewulo, the EEA family permit had expired before the hearing and the tribunal took the view that it continued to have have effect and confer the status of family member and the Home Office accepted the position following instructions.

[Richard W]

Ewulo time line:
Family permit issued: September 2010
Consequent entry: 5 October 2010
RC applied for: 25 October 2010
RC refused: 1 March 2011
Appeal lodged: Unknown (to me)
Upper Tribunal appeal permitted: 3 November 2011
UT Hearing: 3 July 2012

All that is said of the FP and the appellant's status is (Point 16):

We explored the meaning of this regulation with Ms Gough. She recognised that the regulation meant that the claimant should be treated as a family member where: the permit was properly issued and used during the period of its validity; there had been no revocation of the permit and following entry the claimant continued to satisfy the conditions in regulation 8(2). We agree and note this chimes with the terms of regulation 17(4) and (5) of the Regulations that apply where the claimant applies for the first time in country. Where there is no prior family permit the Secretary of State will have to conduct the extensive examination on a first application for recognition of a right of residence made after entry and where a person does not fall within regulation 7(3).

The key point I take from this is that the family permit was still valid on the day the RC was refused. It's only other effect was that in the absence of a challenge, the first tier tribunal had no business reviewing whether a dependency had actually existed before the issue of a FP. Only changes of circumstance since arrival are relevant.

The judgement did not consider whether Ewolu was still a family member at the time that the appeal was lodged or the time of the hearing by the Upper Tribunal. I would expect that to depend on the ultimate outcome of the appeal. Remember, to appeal, he did not have to show that he was a family member, merely that he was related as claimed. The law was different in 2011. The judgement as reported does not explicitly consider whether Ewolu was entitled to appeal; it is clear from Point 6 and a knowledge of the 2006 regulations as they were in 2011 that he was.

[Obie]

If any doubts exist as to the application of SALA in PR cases, then the case below put that to rest.

http://www.bailii.org/uk/cases/UKAITUR/ ... 62016.html

I know this is any event academic, as SALA has been found to be inconsistent with the EEA Regulations.