Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26992/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 19 October 2016
On 13 December 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

HAMZA Hamayun
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr Diwnycz, Senior Home Office Presenting Officer
For the Respondent: Mr Hussain

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and to the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, Hamza Hamayun, was born on 19 August 1989 and is a citizen of Pakistan. He first entered the United Kingdom as a student in 2011. The appellant claims that he is the first cousin of one Wasim Abdul Qudduz, a citizen of the Netherlands. He sought an EEA residence card as a non-EEA national extended family member and his application was refused by a decision of the respondent dated 17 July 2015. The First-tier Tribunal (Judge Robson) in a decision promulgated on 8 March 2016, allowed the appeal. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. A fundamental issue is now of relevance in this appeal as a result of developments in the jurisprudence. In Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) the Upper Tribunal held that there was no statutory right of appeal against the decision of the Secretary of State not to grant a residence card to a person claiming to be an extended family member (EFM). I raised this matter with Mr Hussain, who appeared for the appellant, before the Upper Tribunal. He sought to persuade me that the Upper Tribunal in Sala had failed fully to address the provisions of Directive 2004/38/EC (29 April 2004). He referred in particular to Articles 6 and 7 of the Directive in which reference is made to "family members in possession of a valid passport who are not nationals of a member state ..." He submitted that the rights of the appellant in the present case were derived from the Directive not from the Immigration (EEA) Regulations 2006 (as amended).
3. I disagree with those submissions. The distinction made in EU law between "family members" and "extended family members" is subject to a discussion by the UT in Sala at [21]-[26]:
21. We have set out the relevant domestic law, contained in the EEA Regulations 2006, rather than Directive 2004/38/EC (the "Citizens Directive") which is primarily concerned with the free movement and residence of EEA nationals and their "family members" as defined in Art 2.2 of that Directive. So far as "other family members" including those in a "durable relationship", are concerned Art 3.2 of the Citizens Directive provides that a Member State should "in accordance with its national legislation, facilitate entry and residence" of "the partner with whom the Union Citizen has a durable relationship, duly attested". Further, the Citizens Directive (mirrored in reg 17(5) of the EEA Regulations 2006) provides in Art 3.2 that:
"The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people."
22. It is not necessary to make further reference to the detailed provisions of the Citizens Directive. It has been accepted by the CJEU that the rights of free movement and residence conferred upon EEA nationals and their "family members" are not directly replicated in the case of EFMs (see, SSHD v Rahman and others (Case C-83/11) [2013] Imm AR 73). A Member State's obligations are limited, only requiring it to "facilitate" entry and residence in accordance with national legislation founded on an extensive examination of an individual's personal circumstances.
23. It was not suggested before us that our domestic law in the EEA Regulations 2006 is, in any way, inconsistent with the provisions of the Citizens Directive. Further, if no right of appeal exists, then judicial review will lie as the appropriate remedy. In Rahman the court made clear that a full merits-based appeal was not required by the Citizens Directive; only a judicial review to ensure that the decision-maker has "remained within the limits of the discretion set by [the] Directive"(see [25]).
24. Once a residence card is issued, the EEA Regulations 2006 place EFMs in the same position as "family members" ("treated as family members") provided that they continue to satisfy the conditions in reg 8 which resulted in their being EFMs and their documentation remains valid and has not been revoked. Regulation 7 lists those who are to be treated as family members for the purposes of the Regulations, including in reg 7(3):
"(3) ... a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as a family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked."
25. Thereafter, the EFM has the same right to admission and residence under the EEA Regulations 2006 as does a "family member".
26. It will be clear from this analysis that for EFMs recognition of their rights of admission and residence is conditional upon the relevant document, whether family permit, registration certificate or residence card, being issued under the EEA Regulations 2006 (see, Aladeselu and others v SSHD [2013] EWCA Civ 144 at [52]). This, of course, contrasts with the position of "family members" who derive their rights of admission and residence directly from EU law and the relevant documentation is merely evidence of that right. This is important. The EEA Regulations 2006 see the rights of family members and EFMs in different ways. The rights of family members derive from the Citizens Directive, those of EFMs from national law apart from the procedural right to have their applications determined following extensive examination of their personal circumstances. Family members have rights independent of being issued with a residence card. EFMs' rights, if any, derive from the exercise of the Secretary of State's discretion to issue (and allow them to keep) a residence card; their substantive rights arise only after the card is issued
4. As the Tribunal observed, member states' obligations as regard extended family members are limited to "facilitating entry and residence in accordance with national legislation founded on an extensive examination of an individual's personal circumstances." The alleged different treatment of EFMs in United Kingdom law had not been challenged as being inconsistent with the provisions of the Directive as the Upper Tribunal in Sala as noted at [23]. Further, as the Tribunal observed, an EFM's recognition of his or her right of admission and residence in the United Kingdom depends upon a relevant document whether it be a family permit, registration certificate or residence card. Those documents are issued under the 2006 Regulations. Family members, by contrast, enjoy rights independent of being issued with a residence card; an EFM's rights derive solely from the exercise of the Secretary of State's discretion to issue such a card. The substantive rights (bringing EFMs into line with "family members") arise only after the card itself has been issued.
5. Mr Hussain did not engage with those propositions of law as set out in Sala. However, I consider that they are clear enough to defeat his submission to the effect that the present appellant has an EFM may in some way enjoy a right of appeal under the 2006 Regulations. Mr Hussain did not suggest that the decision of the Tribunal in Sala had been wrongly decided; it follows that, if the appellant as an EFM does not have any other discrete avenue of appeal of a kind which escaped the attention of the Tribunal in Sala, then it must follow, for the reasons given in that appeal, that he has no right of appeal under the 2006 Regulations to the First-tier Tribunal. That I consider to be the correct position. Given that Mr Hussain has not challenged the ratio of Sala as regards the absence of a right of appeal, I do not propose to quote further from that authority. It follows that the appellant in the instant appeal had no right of appeal and that the First-tier Tribunal had no jurisdiction to entertain the appeal.
Notice of Decision

I set aside the decision of the First-tier Tribunal which was promulgated on 8 March 2016. The First-tier Tribunal had no jurisdiction to hear the appeal. I substitute a decision that there is no valid appeal before the First-tier Tribunal.

No anonymity direction is made.

Signed Date 10 December 2016

Upper Tribunal Judge Clive Lane