A European national who is exercising treaty rights in the United Kingdom, or who has the right of permanent residence in the United Kingdom, is entitled to have his/her family members reside with them in the UK. Family members do not need to have a document to prove this right. However extended family members’ rights to reside in the United Kingdom are conditional upon their being issued with documentation.
Who then is an extended family member? Regulation 8 of the Immigration (European Economic Area) Regulations 2006 defines an extended family member as a person who is not a family member of an EEA national and who is:
1. A relative of an EEA national (or their spouse or civil partner) who is dependent on the EEA national or is a member of their household, and
a) is accompanying the EEA national to the UK or wishes to join them or
b) has joined them in the UK and continues to be dependent on them or to be a member of the household.
2. A relative of an EEA national or their spouse or civil partner who strictly requires the personal care of the EEA national or their spouse or civil partner due to serious health grounds.
3. A relative of an EEA national who would meet the requirements of the Immigration Rules for indefinite leave to remain (other than those relating to entry clearance) as a dependent relative of an EEA national as if the EEA national was a person present and settled in the UK.
4. The partner of an EEA national, other than a civil partner, who can prove they are in a durable relationship with the EEA national. A durable relationship as an unmarried partnership is normally a relationship that has subsisted (continued in existence) for two years or more.
The guidance from the Home Office states that “there is no limit on the distance of the relationship between the EEA national or their spouse or civil partner and extended family member as long as they can provide valid proof of the relationship between them”.
The guidance further states that the term “relative” includes brothers, sisters, aunts, uncles, cousins, nieces, nephews but importantly states that this list “is not complete. You can also include those related by marriage and further generations of the above relatives such as great aunts, great-nephews, and second cousins”.
In theory, therefore, the rights of an EEA national to be joined by his or her extended family members are quite extensive.
What then if the extended family member makes an application to the Home Office or to an entry clearance post for the right to enter/reside in the United Kingdom and that application is refused?
Does that extended family member have the right of appeal?
Until recently the fact that they did was settled law.
A recent decision from the Upper Tribunal (Immigration & Asylum Chamber) is unfortunately unhelpful, see Sala (EFMS: Right of Appeal) [2016] UKUT 411 (IAC).
The interesting thing about this case is that both the appellants and Home office representative agreed that they did. Not satisfied with this answer the court invited the Government is represented as a “friend” to the court to put the counter argument.
In this determination, the Vice-President of the Upper Tribunal, Mr C M G Ockelton and Upper Tribunal Judge Grubb held that there is “no statutory right of appeal against the decision of the Secretary of State no to grant a residence card to a person claiming to be an extended family member”.
In the case of Sala the appellant, who was a citizen of Albania entered the UK illegally and sometime later applied for a residence card as the extended family member of an EEA national. He was in a durable relationship with a Slovak Republic national.
It was accepted by the Judge that the appellant and his partner were indeed in a durable relationship.
What concerned the Tribunal was whether the appellant indeed had a right of appeal under the EEA Regulations 2006.
The Tribunal was concerned by paragraphs 2 and 26 of the Immigration (EEA) Regulations 2006. Paragraph 2 of the Regulations defines an EEA decision against which there would be a right of appeal as a decision which concerns “a person’s entitlement to be admitted to the United Kingdom or a person’s entitlement to be issued with or have renewed or not to have revoked a registration certificate, residence card, derivative residence card, documents certifying permanent residence or permanent residence card;
The Tribunal’s view was that although a European national is entitled to be joined by their family members in the United Kingdom, there was no such “entitlement” for extended family members. Their right was simply a right to be “considered for an exercise of discretion”. The Tribunal concluded that a decision, taken by the Secretary of State in the exercise of her discretion, not to issue an extended family member with a residence card under Regulation 17(4) is not a decision under the EEA Regulations 2006 which “concerns a person’s entitlement to be issued with a residence card”.
The Home Office have already amended their guidance on the 22nd September 2016 to state “there is no right of appeal against a refusal on this basis”.
The only right of redress would therefore be an application for judicial review against the Home Office’s decision or to make a fresh application. It has been suggested that one way to retain the right of appeal would be to make a human rights application at the same time as an application European documentation which would preserve a right of appeal (see however the earlier posting from Rebecca Nielson of this office on the increased fees that appellant’s now face to lodge an appeal.) It’s also arguable that those Extended Family Members who have already been issued with documentation would still retain an entitlement to appeal were they to make a further application and this does not cover extended family members who have applied to have it recognised that they have acquired a right of permanent residence. They will have the right of appeal if their application is refused. For some extended family members in “durable relationships” they may also need to consider entering into a marriage although this is not always possible for some.
