SM (Algeria) v Entry Clearance Officer, UK Visas Section

A JUDGMENT OF TWO PARTS: a non-lawyer’s guide (1/2)

Susanna is a beautiful seven year old girl.  Abandoned at birth outside an Algerian hospital she was placed in the long-term care of Mr and Mrs M, a French couple living and working in the UK.  Unable to conceive their own child they decided to travel to Algeria to be assessed for the suitability as guardians under the Islamic kefalah system.  Following the transfer of legal custody and parental responsibility to Mr and Mrs M, Susanna applied for admission to the UK as a family visitor.  This was refused and Susanna reapplied, this time under the Immigration (EEA) Regulations 2006 as the family member of Mr and Mrs M.  The application was refused on the basis that the Algerian guardianship was not recognised as an adoption under UK law, and that Mr and Mrs M had not made an application under s 83 of the Adoption and Children Act 2002 for Susanna to be adopted once here.  She appealed to the First-tier tribunal who in a reserved determination dismissed the appeal.  Susanna then appealed to the Upper Tribunal which sat as a legal panel.  In a reserved determination the panel dismissed the appeal with reference to the 2006 EEA Regulations but allowed it on the basis of Article 8 of the ECHR.  Unhappy with that decision the Entry Clearance Officer successfully appealed to the Court of Appeal which held that the Upper Tribunal was wrong to allow the appeal on Article 8 ECHR grounds and that Susanna could not qualify as either a family member or, in the alternative, an extended family member under the 2006 EEA Regulations.  Thus it was that the matter came before the Supreme Court.

Part 1 : Sala… the final nail in the coffin ?

Immigration lawyers need no introduction to the mess that spawned after the Upper Tribunal’s judgment in Sala [2016] UKUT 411 (IAC), promulgated 7 September 2016.  In short, under the 2006 EEA Regulations (and the Citizens Directive that the Regulations give effect to) there are two types of family member, as defined.  The first is uncontroversial – direct family members (e.g. spouses, parents, children including adopted children etc.)  The second is extended family members (e.g. unmarried partners, uncles/aunts, nephews/nieces, cousins etc.)  Mr Sala, as an unmarried partner, claimed to be an extended family member of a Union citizen.  Before Sala, it was always accepted that in respect of both types, an adverse decision attracted a right of appeal to the First-tier Tribunal.  So far, so good.

In Sala, an ordinary case on its facts, things materially changed.  The appeal came before the Upper Tribunal, having been dismissed by the First-tier Tribunal.  Of his own accord the Deputy President of the Upper Tribunal raised as a preliminary issue the question whether under the 2006 EEA Regulations Mr Sala had a right of appeal in the first place and therefore whether the tribunal had jurisdiction to hear his appeal.  The Home Office and Mr Sala were agreed that he did have a right of appeal.  Dissatisfied with the consensus between the parties the Upper Tribunal adjourned and directed that the Attorney General appoint counsel to act as ‘a friend to the court’ and specifically to argue the contrary.  In the end counsel’s submission to the Upper Tribunal was that there was logic to the agreed position argued for by the Home Office and Mr Sala.  Despite the firm view taken by the parties, supported by the ‘friend to the court’, the Upper Tribunal in a reserved decision dismissed the appeal holding that a decision to refuse to issue a residence card to an extended family member was not one which attracted a right of appeal, and as such the tribunal had no jurisdiction to consider any such appeals.  The Upper Tribunal’s decision was reported, the designed effect of which was to set a procedural bar thereafter to any such appeals being litigated for want of jurisdiction.

Mr Sala did not appeal.  The effect of concessions made during his appeal meant that he would inevitably succeed upon a fresh application, which was in his best interests to pursue.  It was then left to the Home Office to appeal the Upper Tribunal’s determination.  In a surprise U-turn and contrary to its submission to the Upper Tribunal, the Home Office agreed that extended family members did not have a right of appeal to the tribunal and amended its guidance and subsequently the EEA Regulations to this effect.  No doubt the Upper Tribunal’s determination was gratefully received by a Secretary of State desperate to adopt any measure to eliminate rights of appeal in an effort to reduce net migration to the tens of thousands.

In practice thereafter appeals lodged by those claiming to be extended family members were summarily rejected by the First-tier tribunal and pending appeals, having been filed before Sala, were dismissed on grounds of lack of jurisdiction.  The luckiest cases were adjourned pending the hope of guidance from the higher courts.  Hundreds, if not thousands, of cases are likely to have been affected.

After Sala the Upper Tribunal considered the case of Banger [2017] UKUT 00125 (IAC).  Like Mr Sala, Mr Banger claimed to be an unmarried partner and therefore an extended family member of a Union citizen.  The issues before the Upper Tribunal were different to those in Mr Sala’s case which the President considered to be difficult enough to refer to the Court of Justice for the European Union for answers.  In the light of Sala the Upper Tribunal also decided at the same time to ask the Court of Justice for its opinion on whether extended family members have a right of appeal under European Union law.  The judgment is expected within the next few months.

Susanna was granted permission to appeal to the Supreme Court before any of the problems caused by Sala arose.  At no stage did anyone suggest that the tribunal or the Court of Appeal did not have jurisdiction to hear the appeal.  In the ECO’s written case to the court however, she drew attention to the Sala decision but said it was for information only.  Having done so, Susanna was able to invite the Supreme Court to determine, as a preliminary issue, whether it had jurisdiction to hear the appeal.  Although the ECO sought to resist at first, she soon accepted that Susanna was correct to ask the question.  The parties therefore agreed that the Supreme Court should decide whether the Upper Tribunal’s decision in Sala was correct.  The Court helpfully agreed to permit the parties to file written submissions and agreed, if necessary, to reconvene for a further hearing on the Sala point.  The hearing on 23 March 2017 dealt only with the issues which are explained in the second part to this blog.

In the meantime, the Court of Appeal heard the appeal in Khan [2017] EWCA Civ 1755.  Mr Khan claimed to be the extended family member of his uncle, a Union citizen.  Before Sala the First-tier Tribunal allowed his appeal but the Upper Tribunal subsequently ruled that it had had no jurisdiction to hear the appeal in the first place and allowed the Secretary of State’s appeal.  Mr Khan persuaded the Court of Appeal to grant permission to appeal on the critical issue of whether Sala was correctly decided.  In its judgment handed down on 9 November 2017, shortly before the Supreme Court reconvened to hear the argument, the Court of Appeal allowed Mr Khan’s appeal concluding that the Upper Tribunal was wrong in Sala to hold that extended family members did not have a right of appeal under the 2006 EEA Regulations.

On 29 November 2017 the Supreme Court resumed to consider what was essentially the Secretary of State’s appeal against the Court of Appeal’s judgment in Khan.  At § 35 of its judgment, the Court refreshingly described the argument as a “simple one”.  Contrast this with § 84 of the Upper Tribunal’s determination in Sala where the issue was described as “difficult”.  The reality, it seems, is that the 2006 EEA Regulations were, as the Master of the Rolls said at § 27 of Khan, “formidably obscure and badly drafted” and that the Upper Tribunal, without necessity or invitation, complicated what should have been (and was for many years before then) a straightforward exercise of interpreting simple language applying their ordinary and natural meanings.

At § 38 the Court held that the Court of Appeal was clearly correct to reach the conclusion that it did in Khan, overturning the Upper Tribunal’s decision in Sala; that under the 2006 EEA Regulations there was a duty on the Secretary of State to facilitate entry, to make full enquiries and to justify refusal; it was inevitable that there would be cases in which the refusal would be wrong, and that those persons once proven to be wrong would be entitled to be treated as family members under the 2006 EEA Regulations.  Such persons therefore did have a full right of appeal to the First-tier Tribunal.

Is that now finally the end of Sala?  The short answer is that it should be.  However, the Supreme Court concluded its judgment by reminding itself first at § 40 that the 2006 EEA Regulations have since been replaced by new regulations passed in 2016 which removes the right of appeal for extended family members, presumably to implement the now defunct decision in Sala.  One would therefore expect the Secretary of State to revise the definition of “EEA decision” in the 2016 EEA Regulations but, as recent form shows, she has a habit of doing the unexpected and we wait to see.

Second, at § 41 of its judgment the Supreme Court refers to the hearing in Banger, which has now taken place.  The outcome of that reference in Banger will determine the slightly different question of whether the procedural safeguards contained in the Citizens Directive require a full merits appeal to the tribunal.  If the Court of Justice agrees with the Secretary of State that the UK judicial review procedure does provide an effective remedy it may be that the issue has to be revisited.

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.

Tony Muman and Katie Wilkinson appeared for Susanna, together with Jessica Smeaton and led by Ramby de Mello.  Lisa Tang at David Tang and Co. Solicitors is Susanna’s solicitor.

For any further enquiries please contact Tony and Katie’s clerks on 0121 237 6035 or clerks@43templerow.co.uk