The Secretary of State had refused to grant a residence card to the Pakistani nephew of a German national. The Court was asked whether there is jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the Secretary of State for the Home Department to exercise her discretion to grant a Residence Card to a person claiming to be an Extended Family Member – whether the decision in question was one which ‘concerns . . an entitlement’ to enter and be granted a residence card? Both the appellant and the Secretary of State had argued then that there was a two stage process: first the factual decision whether the appellant fell within the definition of an extended family member; and second the decision whether it was appropriate to grant entry and a residence card; once granted, this would result in an entitlement to enter and reside; hence the decision ‘concerns’ that entitlement because it ‘is relevant to or important to’, ‘relates to’ or ‘is about’ the entitlement to a residence card.
Held: The decision in Sala was overruled.
Irwin LJ held that ‘a decision which ‘concerns’ an entitlement appears to me naturally to include a decision whether to grant such an entitlement’
Longmore LJ, agreeing, added that, even where there was a discretion, it had to be exercised in accordance with the correct legal principles: a litigant was entitled to a decision exercised in that way.
Sir Terence Etherton MR, Longmore, Irwin LJJ
[2017] EWCA Civ 1755, [2017] WLR(D) 747, [2018] Imm AR 440, [2018] 1 WLR 1256, [2018] INLR 39
Bailii, WLRD
England and Wales
Citing:
Wrongly Decided – Sala (EFMS: Right of Appeal : Albania) UTIAC 19-Aug-2016
UTIAC There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. Because decisions concerning . .
Cited by:
Cited – SM (Algeria) v Entry Clearance Officer, UK Visa Section SC 14-Feb-2018
The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 04 January 2022; Ref: scu.599373