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Immigration & Asylum Law - Rights of Appeal for Extended Family Members

by Kenworthy's Chambers 16/11/2017

Following on from our original article on Rights of Appeal for Extended Family Members; judgement has now been handed down by the Court of Appeal in a case of Khan v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1755, overturning the controversial decision in Sala (EFMs: Right of Appeal) [2016] UKUT 00411, which effectively removed rights of appeal for those applying to be recognised as extended family members of EEA nationals. This is a welcome development addressing what was a perplexing, and apparently unprovoked, change in the interpretation of the law. It will be remembered that when Sala was heard by the Upper Tribunal both sides to the litigation were in agreement, and argued that a right of appeal did in fact exist; a position now endorsed by their Lordships in the Court of Appeal.

Regardless, whilst the position has now been set straight, at least so far as to the Immigration (European Economic Area) Regulations (2006) are concerned; this leaves a large number of appeals which, in the interim, have been wrongly dismissed for want of jurisdiction. Where fees have been paid and appeals have been wrongly dismissed, it may be that in light of the Court of Appeal's decision such appeals can now be re-opened on application to the Tribunal. Whether this is appropriate given time that has passed in the meantime, possible changes of circumstances, and new applications that my have been made, is a question that requires careful thought and specialist advice. At a minimum however, there would seem to be a strong argument for the refund of fees in those cases wrongly dismissed, and this likewise is a request that could be made of the Tribunal in appropriate cases.