EU nationals and the immigration tribunal

Families of EU nationals have won a court battle for a right of appeal. Rajiv Sharma explains the Court of Appeal's ruling.

In a landmark judgment, the Court of Appeal has handed down its decision in the case ofMK (Pakistan) [2017] EWCA Civ 1755. This ruling affects large numbers (probably thousands) of relatives of EU nationals refused entry to the UK or refused recognition of their residence status here.

A panel of three senior Court of Appeal Judges (the Master of the Rolls Sir Terence Etherton, Lord Justice Longmore and Lord Justice Irwin) have reversed an earlier Upper Tribunal decision that had abolished the rights of relatives of EU nationals to access the immigration Tribunal in order to explain their case to a judge independent from the Home Office.

The facts in MK

MK, is a Pakistani National who applied to remain in the UK as a dependent on his EEA national uncle. The Home Office refused the application because it was believed that he was neither sufficiently dependent nor that his EEA National sponsor was ‘exercising treaty rights’. On appeal the Tribunal disagreed with the Home Office and allowed the appeal. Subsequently, the Home Office appealed to the Upper Tribunal who concluded that they did not have jurisdiction to hear the appeal, due to the effect of a prior case called Sala (see below).

Background

For years, the settled understanding of immigration lawyers, the Home Office and the Tribunal was that the 2006 EEA regulations [i] conferred a right of appeal on anyone who receives a refusal decision following an application for a residence permit as an Extended Family Member (‘EFM’) under regulations 8 and 17.

All that changed in 2016, when despite both the Home Office and claimant lawyers agreeing that the Tribunal had jurisdiction to hear the appeal, the Vice President of the Upper Tribunal, Mark Ockelton, took the unusual step in a case called Sala [ii] of appointing the Attorney General’s office as a ‘friend of the court’ to argue the contrary. The Upper Tribunal concluded that there was no jurisdiction to appeal against a refusal of a residence card for an application made by an EFM. The Home Office quickly re-wrote its policies and issued new regulations to cement the change in law.

Many of those affected have had their appeals struck out by the Tribunal or withdrawn. Their only way of challenging the Home Office has been through judicial review, a notoriously difficult process that is often costlier than an appeal. Claimants also faced the risk that if they lost their judicial review claims, they would have to reimburse the government its legal costs at privately paid rates.

As a result, claimants have been left in legal limbo and in some cases wrongly classed as illegal immigrants subject to Theresa May’s ‘hostile environment’ policy, with its wholesale restrictions on permission to work, rent, bank and drive in the UK.

Now the Court of Appeal have decided that the decision in Sala was wrong.

Key findings

The Court found that:

1. The Court notes that the Home Office “Regulations are formidably obscure and badly drafted” (paragraph 27);
2. The ordinary meaning of the word “concerns” in regulation 8 includes situations in which there may be an element of discretion (paragraph 45);
3. The reasoning of the Upper Tribunal was wrong because it fails to recognise that there is a subtle difference between an ”entitlement” and a “right” (paragraph 45) – an “entitlement” can exist subject to discretion;
4. Importantly, appeals in the Tribunal are a “preferable procedure” for challenging refusal decisions under the 2006 Regulations, not judicial review (paragraph 46).

Comment

Without a full, unconditional guarantee of their rights post-Brexit, the relatives of EEA nationals are in an increasingly precarious position as exit day approaches. The decision of the Court of Appeal will be welcome news for many vulnerable families who have been denied the right to explain their case to a judge and wrongly treated as illegal immigrants.

MK’s appeal has no impact on the subsequent EEA Regulations enacted in 2016 [iii], which take on board the comments of the Tribunal in Sala. Together with other members of 36 Civil I am currently involved in a number of challenges to this and other aspects of the 2016 Regulations.

It remains to be seen how the Tribunals will remedy the now erroneous notices sent out to relatives of EEA nationals cancelling their appeals. Ideally, the Tribunal should issue guidance that will allow these cases to be heard out of time and swiftly. If that does not happen, it may be possible for claimants to apply to correct the Tribunal’s decisions under what is called the ‘slip rule’. Alternatively, they may seek judicial review out of time, although this may be a less attractive route.

Rajiv Sharma, an immigration barrister at 36 Civil, represented the appellant ‘MK’ following the refusal of his appeal by the Upper Tribunal. Rajiv was joined, in the later stages of the appeal, by Ramby De Mello (of No.5 Chambers) and the AIRE Centre (instructing David Chirico and Katherine Robinson) as an intervener, in a case involving significant levels of collaboration across different chambers at the immigration bar.