Shemsi Sala v Secretary of State for the Home Department

A refusal to issue a residence card to an extended family member under regulation 17(4) of the Immigration (European Economic Area) Regulations 2006 is not an “EEA decision” concerning that person’s entitlement to be issued with a card. An extended family member has no entitlement to a card before the Secretary of State exercises the statutory discretion in the applicant’s favour.

Accordingly, regulation 26 creates no statutory appeal against such a refusal. The extended family member’s enforceable procedural right is to a lawful, extensive examination of personal circumstances and reasons for refusal. Judicial review, rather than a merits appeal, is the appropriate means of challenging an unlawful exercise of that discretion.

The appellant, an Albanian national, applied for a residence card as the durable partner of a Slovak EEA national. The Secretary of State refused the application under regulation 17(4) of the Immigration (European Economic Area) Regulations 2006.

The First-tier Tribunal found that the relationship was durable and that the appellant was an extended family member. It nevertheless declined to exercise the discretion to issue a residence card differently, and dismissed the appeal. On the appellant’s onward appeal, the Upper Tribunal raised whether the First-tier Tribunal had jurisdiction at all. The central issue was whether refusal of a discretionary residence card to an extended family member was an appealable “EEA decision” under regulation 26.

1. The Upper Tribunal held that there was no valid statutory appeal. It set aside the First-tier Tribunal’s decision because that tribunal had no jurisdiction to determine the purported appeal.

2. Under regulation 2(1)(b), an appealable EEA decision must concern a person’s entitlement to be issued with a residence card. A qualifying family member has that entitlement once the prescribed conditions are established, because the Secretary of State must issue the card. An extended family member under regulation 17(4), however, remains dependent on a favourable discretionary decision. The discretion stands between qualification as an extended family member and issue of the card. There is therefore no entitlement to the card capable of founding an appeal.

3. The word “concerns” did not enlarge “entitlement” to include a potential entitlement dependent on discretion. The same conclusion applied by parity to refusal of a registration certificate to an EEA-national extended family member under regulation 16(5).

4. Regulation 26(2A), concerning evidence required from a person claiming a durable relationship, did not alter that construction. A later amendment could not change the meaning of the original definition of an EEA decision without amending that definition. In any event, regulation 26(2A) could apply in other appeal contexts and did not establish an appeal against an initial discretionary refusal.

5. The Tribunal noted the Secretary of State’s concession that the earlier discretionary assessment had not met the requirement for an extensive examination of the appellant’s personal circumstances under regulation 17(5). That unlawfulness did not create appellate jurisdiction. The appropriate remedy was judicial review.

• Upper Tribunal (Immigration and Asylum Chamber): held that the First-tier Tribunal lacked jurisdiction and substituted a decision that there had been no valid appeal.
• First-tier Tribunal: determination dated 26 June 2014 dismissed the appeal under the EEA Regulations and article 8, after finding that the appellant was in a durable relationship but declining to exercise discretion differently.