LS Legal Solicitors (RUSSIAN)

Extended Family Members Have the Right of Appeal, Again

Tuesday 14th November 2017

In 2016, the Upper Tribunal decided in the case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC), that there was no right of appeal against a decision by the Home Office to refuse a residence card to the extended family member of an EEA national.

The decision affected large numbers of individuals, including unmarried partners of EEA nationals plus other extended relatives. Those who had already lodged appeals had them struck out. Those who were refused residence documents were told they could not appeal and would have to argue that the refusals were unlawful or irrational on expensive and risky judicial review claims. The situation for many seemed hopeless.

However, on 13 October 2017 and confirmed by the decision and reasons handed down on 09 November 2017, the Court of Appeal confirmed that the Upper Tribunal was wrong, and the decision has been overturned.

What Now?

After thousands of extended family members were wrongly denied a right of appeal by the decision in Sala, it will take some time to clarify their situation. Being mindful that this decision will only be relevant until the UK leaves the EU, there is no guarantee that those refused will successfully be recognised and issued with a Residence Card.

At present, there are limited options available to those affected, all of which require expert legal assistance and include:

• Making an out of time application for permission to appeal, stating these proceedings as a reason for the late appeal. There is no guarantee that such an argument will be accepted;

• If you had already lodged an appeal and received a letter from the Tribunal requesting you to put forward your arguments as to why the court should retain jurisdiction, then your appeal should be allowed to proceed; or

• If you had already appealed but your arguments were rejected and thus your appeal was withdrawn, you could apply to have said decision set aside under Rule 32 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

If you are affected by the decision in Sala and were denied a right of appeal, please do not hesitate to contact us by e-mail info@LSLegaLUK.com or by phone +447535959450 for a no-obligation consultation providing legal advice in order to navigate the best way forward for you.