On 13 October 2017 the Court of Appeal heard the appeal of MK an extended family member of an EU citizen exercising Treaty rights in the UK.  The sole question before the Court was whether MK had a right of appeal against the refusal to issue him a residence card under the EEA Regulations 2006. 

In the case of Sala the UT held that no such right of appeal existed because the grant of a residence card and an EEA family permit to an EFM by the Secretary of State for the Home Department involved the exercise of discretion.  Hence as the issue of a residence card and a family permit depended on the exercise of discretion there was no entitlement to such a document.  Only close family members were entitled to such a document and if they were refused this document they were entitled to appeal.

The Court of Appeal disagreed with the UT determination in Sala.  A number of strands of arguments was developed in the course of discussion.

One view (particularly as expressed by Lord Justice Irwin) was that the grant of a residence card under EU law via the exercise of discretion did not deprive the Extended family member (EFM) of a right of appeal as the distinction between the exercise of discretion to confer an advantage on the EFM and the entitlement of a close family member to a residence card under EU law was negligible.   The exercise of discretion did not deprive the applicant the right to the residence card if he satisfied the criteria set out in the EEA Regulations.  Hence if he was refused such a card then the FtT could determine his right to it.

Another view expressed by the Court was that the discretion possessed by the SSHD was somewhat limited (what else was there which was not already stated in the EEA Regulations the SSHD could rely on to refuse to issue the residence card to the EFM? –This was the line of questioning led by the Master of the Rolls). 

The appellant’s submission was that the SSHD did not enjoy a wide discretion as contended by her.  The discretion was circumscribed by the content of the EEA Regulations which defined what and what she could not do; if this was true of the EEA Regulations then the exercise of discretion was limited and this meant that the refusal of the residence card to the EFM was justiciable as an entitlement and not as a gift.   Any terms of the discretion had to be transparent and published.

Lord Justice Irwin requested the SSHD’s Counsel to explain how the refusal of a residence card to an EFM which encompassed discretion based on EU law grounds (i.e. public policy grounds) together with domestic grounds (immigration control) could be divined as the former was appealable whereas the latter is stated not to be appealable. The Court also wished to know what the SSHD’s analysis was in relation to the difference between a refusal decision based on discretionary grounds and those based on public policy grounds.  The latter is defined as an EEA decision whereas on the strength of Sala the former (discretionary grounds) was stated not to be an EEA decision.   The SSHD faced some difficulty in satisfying the Court that the discretionary element in the decision took it outside being an EEA decision.

Lord Justice Longmore expressed bewilderment at the SSHD’s position between 2000 (the EEA Regulations) and the Sala determination where she always considered that EFMs had a right of appeal against the issue of a residence card notwithstanding the decision was based on the exercise of discretion.  Why was it that she now, contrary to the submissions she made before the UT in the Sala case, contended that EFMs did not enjoy a right of appeal under the 2006 EEA Regs. 

His Lordship was at pains to understand why the SSHD did not challenge the UT’s determination in Sala by way of judicial review.  Counsel indicated to his Lordship that the 2016 EEA Regulations which do not confer a right of appeal on EFMs against the refusal of a residence card was based wholly and exclusively on the determination of Sala.  His Lordship wished to know what it was which scared the SSHD from granting EFMs a right of appeal.

At the end of the hearing the Court retired for a short while and then emerged to announce that MK’s appeal was allowed but that the reasons for their judgment would be given at a later stage.

Ramby de Mello was lead counsel with Rajiv Sharma from The 36 Group as his junior.