The Supreme Court has confirmed that extended family members of EEA nationals do enjoy a right of appeal.
The Court of Appeal had come to the same conclusion last November in the case of MK (Pakistan) [2017] EWCA Civ 1755.
I wrote about the Court of Appeal’s reasoning at the time and you can read it here.
The Supreme Court has now, in the case of SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9, stated that the Court of Appeal’s decision was correct.
It has confirmed that the notorious Upper Tribunal decision in the case of Sala [2016] UKUT 411 (IAC), should be overruled.
It was in Sala that the Upper Tribunal decided that for over a decade, lawyers, judges and the Home Office had all got it wrong in giving extended family members a right of appeal.
Hopefully this is the final nail in the coffin for Sala although the Supreme Court did conclude its judgment by pointing out that the current EEA Regulations, amended after Sala, do not provide for such a right of appeal.
It would be expected that the Secretary of State will revise the Regulations in light of the Supreme Court decision but until that happens, it cannot be taken for granted.
Finally, the Court referred to the case of Banger [2017] UKUT 00125 (IAC) in which the same issue was referred to the Court of Justice of the European Union (CEJU) for guidance.
The oral hearing in Banger took place in 2018 and the determination is expected within the next few months.
The CJEU will decide whether the procedural safeguards laid down in the EC Directive require a full merits appeal to a court or tribunal or whether judicial review would constitute an effective remedy for this purpose.
If the CJEU decides that judicial review is an effective remedy, the whole issue may require further litigation.
The last two years of litigation in the highest courts in the UK and Europe on a matter that all parties were agreed on for over a decade, seems to have been a significant waste of time and money which has devastated the lives of tens of thousands of people.
The comment by 43 Temple Row Chambers who represented the Appellant before the Supreme Court effectively summarises the problems that have been caused by Sala over the past 18 months:
Whatever happens hereon, looking back and especially in the context of the very many number of people who have undoubtedly been denied a right of appeal because of Sala, the Upper Tribunal must be wondering whether it was sensible to interfere with a longstanding practice that did not need or require disturbance. No doubt those who have been denied the right of access to the tribunal because of Sala will now call for remedy at risk of being, as some have described, victims of historical injustice to arise from unwarranted judicial interference.
Visadreams.com, Diary of an Immigration Lawyer, is a blog run by Fahad Ansari, the director and principal solicitor of Riverway Law, a niche UK immigration and nationality law practice based in London. If you would like any advice or assistance in relation to your immigration matter, please do not hesitate to email me at fahad@riverwaylaw.com or submit your details here.
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