Court of Appeal Confirms that Relatives of EU Nationals DO Have a Right of Appeal

It will come as great relief to many that the Court of Appeal has confirmed that the relatives of EU nationals whose application for residence cards are refused, have a right of appeal.

Indeed most would have assumed this to be the case.

In fact, this was the case for over a decade until September 2016.

At that point, the Upper Tribunal, in the case of Sala, decided that for ten years, lawyers, judges and the Home Office had all got it wrong.

It decided that the right of appeal only existed for the spouses, children and dependant parents of EU nationals because they were entitled to Residence Cards.

Other relatives were excluded because they were not entitled to Residence Cards. Rather, the Home Office had a discretion or choice whether or not to grant them that entitlement to have the documentation.

The decision created chaos with thousands of appeals by extended family members of EU nationals thrown out of the Tribunal as a result.

Now the Court of Appeal, in the case of  MK (Pakistan) [2017] EWCA Civ 1755, has unanimously concluded that Sala was wrongly decided.

It has clearly held that decisions whether to grant the entitlement to have documentation is one which also triggers a right of appeal.

The case will be welcomed by the UK’s 3 million EU nationals whose family lives were heavily disrupted over the past twelve months, leaving them in great uncertainty about their future.

The Home Office may of course appeal this further to the Supreme Court which in any case is currently considering the same point in a separate case – SM (Algeria) v Entry Clearance Officer, UK Visa Section.

Great work by Rajiv Sharma (36 Group) and Ramby De Mello ( No 5 Chambers) instructed by Stella Maris solicitors, who represented the Appellant, and David Chirico and Catherine Robinson (both at 1 Pump Court Chambers) who were instructed by the AIRE Centre as an intervener.

 

Visadreams.com, Diary of an Immigration Lawyer, is a blog run by Fahad Ansari, a solicitor based in London specialising in UK immigration and nationality law. If you would like any advice or assistance in relation to your immigration matter, please do not hesitate to email me at fahad@visadreams.com.

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