Khan v Secretary of State for the Home Department & Anor

A decision refusing an extended family member a residence card is an EEA decision carrying a right of appeal. A decision which “concerns” an entitlement includes a discretionary decision whether to grant that entitlement. It is not confined to decisions about rights which already exist.

An extended family member has no automatic right to a residence card. The Secretary of State nevertheless must exercise the discretion lawfully, after an extensive examination of the applicant’s circumstances, and consistently with family life and proportionality. The contrary jurisdictional ruling in Sala was wrong.

The appellant, a Pakistani national, applied for a residence card as the extended family member of his German uncle. The Secretary of State refused the application under regulation 17(4) of the Immigration (European Economic Area) Regulations 2006, having rejected his claimed status under regulation 8(2).

The First-tier Tribunal allowed his appeal. The Upper Tribunal subsequently held, following Sala (EFMs: Right of Appeal) [2016] UKUT 0411 (1AC), that the First-tier Tribunal lacked jurisdiction and that any challenge had to proceed by judicial review.

The central issue was whether refusal to exercise the discretion to grant an extended family member a residence card was an “EEA decision” concerning an entitlement and therefore appealable under regulation 26.

1. Appeal allowed. The refusal of a residence card to an extended family member was an EEA decision within regulation 2(1) of the Immigration (European Economic Area) Regulations 2006. It was therefore appealable to the First-tier Tribunal under regulation 26. Sala (EFMs: Right of Appeal) [2016] UKUT 0411 (1AC) was wrongly decided (Irwin LJ at paras 42–47; Longmore LJ at paras 48–50; the Master of the Rolls agreeing at para 51).

2. An extended family member has no automatic entitlement to residence merely upon satisfying the threshold conditions. Regulation 17(4) confers a discretion on the Secretary of State. That discretion is constrained by the legislation and by article 3(2) of Directive 2004/38/EC. The decision-maker must undertake an extensive examination of personal circumstances and justify a refusal. The discretion must also be exercised with the advantage accorded to extended family members, respect for family life and proportionality in mind (paras 34–36).

3. The natural meaning of a decision which “concerns” an entitlement includes a decision whether to grant that entitlement. “Entitlement” is capable of describing a benefit obtained or granted. It need not mean an inherent, existing right. The discretionary character of the decision therefore does not remove it from the definition of an EEA decision (paras 42–45).

4. The wider statutory context supported that construction. Extended-family-member decisions were not excluded from the definition of an EEA decision. Schedule 1 applied section 84(1)(d) of the Nationality, Immigration and Asylum Act 2002, whose expression “a member of the family” was wider than the defined term “family member” and capable of including an extended family member (paras 37–41).

5. The principle of equivalence did not itself require a tribunal appeal. Judicial review can determine primary facts and review a ministerial discretion with an intensity appropriate to the issue. Nor did section 109 of the 2002 Act compel the appellant’s construction (paras 30–33). These conclusions did not alter the proper construction of the Regulations.

6. The court did not determine the remaining grounds because success on the jurisdictional ground disposed of the appeal (para 47).

1. Court of Appeal (Civil Division): Allowed the appeal and held that the refusal was an EEA decision appealable to the First-tier Tribunal. Sala was wrongly decided: [2017] EWCA Civ 1755.
2. Upper Tribunal: Set aside the First-tier Tribunal’s determination for want of jurisdiction, following Sala (EFMs: Right of Appeal) [2016] UKUT 0411 (1AC), and held that the refusal could be challenged only by judicial review.
3. First-tier Tribunal: Allowed the appellant’s appeal against refusal of a residence card.