[2023] UKUT 00165 (IAC)

After entering the UK as a student in August 2008 with leave until 30 September 2009, the appellant applied successfully to extend his leave on several occasions. His last period of leave, which was as a Tier 4 General student, was between 28 November 2013 and 19 March 2016.

On 17 March 2016 the appellant submitted an application for a residence card under the EEA Regulations, claiming to be an extended family member of an EEA national. In a decision dated 15 September 2016 (“the 2016 decision”) the respondent rejected the application for multiple reasons. It was not accepted that the appellant was related as claimed to the EEA national, that he was dependent on the EEA national, or that the EEA national was a ‘qualified person’ . The respondent stated the following in respect of whether the appellant could appeal against the 2016 decision:

“You do not have a right of appeal against this decision. Appeals under the EEA regulations can only be made against an EEA decision. An EEA decision does not include a refusal to issue a residence card/a registration certificate/an EEA permit to an extended family member. This position is in line with the Upper Tribunal’s judgment in Shemsi Sala v the Secretary of State for the Home Department (IA/44409/2013)”

Despite being informed that he had no right of appeal, on 7 October 2016 the appellant lodged an appeal in the First-tier Tribunal against the 2016 decision. On 8 December 2016 his appeal was dismissed for want of jurisdiction on the basis that it had been held in Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC); [2017] Imm AR 141 that there is no right of appeal against a decision by the respondent to not issue an extended family member a residence card.

The appellant then (on 19 December 2016) commenced judicial review proceedings in the Upper Tribunal. The appellant’s application challenged the rationality of deciding he was not an extended family member, not the failure to acknowledge that he had a right of appeal. On 23 March 2017 permission was refused on the papers and on 17 May 2017 permission was refused following an oral hearing. The appellant then appealed to the Court of Appeal.

In November 2017, whilst the appellant’s appeal in the Court of Appeal was pending, Sala was overturned by the Court of Appeal in Khan v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1755; [2018] Imm AR 440. Khan made clear that extended family members have a right of appeal to the First-tier Tribunal.

On 17 April 2018, the appellant was refused permission to appeal by the Court of Appeal. There is no reference in the refusal decision to Sala being overturned several months earlier. When refusing permission, Sharp LJ stated:

“The applicant failed to substantiate his claim to be a dependent relative of an EEA national by failing to submit evidence. Furthermore his immigration history was inconsistent with his claim to be a dependent relative…In the absence of any ground with any prospect of success, or any other compelling reason why the claim should be heard, permission to appeal is refused”

On 18 April 2018 the appellant applied for asylum. His application was refused and subsequent appeal dismissed.

He then submitted (on 13 June 2019) an application for leave on the basis of 10 years continuous lawful residence. This application was refused on 18 July 2019 with no right of appeal. The respondent agreed to reconsider her decision, and on 11 May 2021 the respondent made a further decision refusing the appellant’s application, but this time with a right of appeal.