Amirteymour and Others (EEA appeals; human rights)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Rintoul |
| Judgment Date | 04 August 2015 |
| Neutral Citation | [2015] UKUT 466 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 04 August 2015 |
[2015] UKUT 466 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon. Mr Justice McCloskey, PRESIDENT OF THE UPPER TRIBUNAL
Mr C M G Ockelton, VICE-PRESIDENT OF THE TRIBUNAL
UPPER TRIBUNAL JUDGE Rintoul
For Mr Amirteymour: Mr M Biggs, Counsel, instructed by EU Migration Services
For Ms Tijana and Miss Jamiu: Mr K Mak, Solicitor, MKM
For Ms Izvira: Ms C Fielden, Counsel, instructed by Abbott solicitors
For Ms HF and Ms AN: Mr Eaton, Counsel, instructed by Hoole & Co solicitors
For the Secretary of State: Mr Shilliday, Presenting Officer
Amirteymour and others (EEA appeals; human rights)
Where no notice under section 120 of the 2002 Act has been served and where no EEA decision to remove has been made, an appellant cannot bring a Human Rights challenge to removal in an appeal under the EEA Regulations. Neither the factual matrix nor the reasoning in JM (Liberia) [2006] EWCA Civ 1402 has any application to appeals of this nature.
These appeals have been heard together as they raise a question relating to the right of appeal under regulation 26 of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”). The question is: can a Human Rights challenge to removal be brought in such an appeal when no notice under section 120 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) has been served and where no EEA decision to remove has been made?
As these appeals come before us as a result of grants of permission to the Secretary of State in two cases, and to the opposing parties in the other cases, we refer to the Secretary of State as the respondent for the sake of clarity, and to the other parties as claimants.
Mr Amirteymour is a citizen of the USA. He has a daughter aged 9 who is a British Citizen. His application for a residence card as confirmation of his right of residence as her primary carer was refused on 21 February 2014. His appeal against that decision was refused by the First-tier Tribunal on the basis that he did not meet the requirements of the EEA Regulations and on the basis that his removal would not be in breach of article 8 of the European Convention on Human Rights (“ECHR”). Permission to appeal was granted on all grounds.
Ms Tawa Tijana is the mother of Miss Olumide. Ms Tijana is a citizen of Nigeria as is her daughter but she has a younger daughter, Roheemot Koffi who is a French Citizen. The appeal to the First-tier Tribunal was against a decision by the respondent of 18 July 2013 to refuse to issue residence cards to Ms Tijana and Miss Olumide respectively as the primary carer of an EU national and as the dependant of such a person. The appeal was dismissed on the basis that the requirements of the EEA Regulations were not met; permission to appeal was sought on the basis that the First-tier Tribunal had not addressed the ground of appeal that removal of the claimants would be in breach of article 8 ECHR.
Ms Izvira is a citizen of Albania who appealed against the respondent's decision of 3 July 2013 to refuse to issue her with a residence card confirming her right of residence as the primary carer of a British Citizen child. Her appeal to the First-tier Tribunal was at first unsuccessful but, following an appeal to the Upper Tribunal, it was remitted to the First-tier. Her appeal was then dismissed on the basis that she did not meet the requirements of the EEA Regulations, but was allowed on article 8 ECHR grounds. The respondent was granted permission to appeal against that decision; there is no cross-appeal.
Ms HF is the mother of Ms AN who is a minor. Both are citizens of Gambia. On 25 October 2013 the respondent revoked their residence cards which had confirmed their right of residence as the spouse and dependant of an EEA national who had been exercising Treaty Rights and refused to issue them with residence documents confirming their retained rights of residence as the former spouse and child of an EEA national who had been exercising Treaty Rights here. Their appeals were dismissed under the EEA Regulations, but the First-tier Tribunal allowed their appeals on article 8 ECHR grounds. The respondent was granted permission to appeal on all grounds; there is no cross-appeal. There is in place in respect of this appeal an anonymity order made by the First-tier Tribunal.
The refusal letters in the individual cases did not expressly tell the appellants to leave, but did advise them that if they did not do so, they might be subject to removal action. They also stated that the Immigration Rules now set out the requirements for those seeking leave to enter or remain on the basis of their right to respect for private or family life by defining the criteria to be fulfilled in order to qualify for this right to remain. It is also stated that anyone wishing to rely on family or private life established in the United Kingdom under Article 8 of the Human Rights Convention must make an application using the relevant prescribed form and upon payment of the relevant fee. There is also an express reminder that the application has been assessed solely on the basis of the EEA Regulations.
It is to be noted that in none of these appeals did the respondent serve a notice under section 120 of the 2002 Act.
These appeals were, as can be seen from the consideration of the individual facts of the application set out below, directed to be heard together at different stages. The respondent has been permitted to amend her grounds of appeal (where she is the appellant) to include a reference to FK (Kenya) v SSHD [2010] EWCA Civ 1032. We asked the parties to serve written submissions on that decision after the hearing on 31 March 2015 which was confined to oral submissions.
The respondent submitted that an appellant may only pursue grounds of appeal which are related to the underlying decision under challenge and, as refusals of residence documents do not require detailed consideration of article 8 ECHR matters, the extent to which ECHR matters can be considered within an EEA appeal will be limited. She submitted that it is established law, relying on Patel and others v Secretary of State for the Home Department [2013] UKSC 72 and AS (Afghanistan) v SSHD [2013] EWCA Civ 1469, that when the Secretary of State has chosen not to serve a section 120 notice an appellant is restricted to the scope of his original application. As the consideration of an application for a residence document and an assessment of whether an applicant enjoys article 8 rights are inherently different, an appellant cannot raise article 8 ECHR matters within the scope of his appeal.
The respondent accepted that limited human rights considerations may be raised in an EEA appeal, but only to the extent that the failed EEA application may place the appellant at risk of removal., that being limited, pursuant to JM (Liberia) [2006] EWCA Civ 1402, to consideration of any issues which would follow from the likely removal of the appellant from the United Kingdom. That, it is submitted, is not is not an exception to the first submission above.
The respondent submitted also that when considering whether a removal of an appellant would entail a breach of the ECHR, the Tribunal should first ask whether the removal of the appellant is likely. We do, however, note that the ground of appeal set out in section 84 (1) (g) of the 2002 Act requires a consideration of removal as a consequence of an immigration decision, not whether it is likely. She submits that is not the case as the respondent is not currently considering removal directions and, here, had invited the submission of an article 8 application which would have a suspensive effect.
In addition, the respondent further submitted that there is a distinction between the detailed provisions for the protection of article 8 rights set out in the Immigration Rules (“the Rules”) and the much more limited consideration permissible under section 84 (1) (g) of the 2002 Act which, it is said, does not permit an appellant to advance detailed, rule-based arguments which should properly be pursued under a separate application under the relevant Rules.
In addition, the respondent submitted that the statutory jurisdiction of the Tribunal in EEA cases does not permit consideration of matters relating to the Rules, the grounds of appeal in sections 84 (1) (a) and 84 (1)(f) being unavailable in an EEA appeal. Accordingly, the Tribunal's duties pursuant to section 6 of the Human Rights Act 1998 require it to note that the respondent has established within the Rules a detailed regime for consideration of Article 8 matters.
The respondent submitted that JM (Liberia) can be distinguished as all the claimants here are overstayers. Unlike the appellant in that case, there are no adverse consequences to the claimants from not being able to raise article 8 in an appeal; there is and has been nothing to prevent them from making an application under the Immigration Rules at any stage. That requirement is not, it is submitted, disproportionate and a fee-waiver can be requested.
It is also submitted that, contrary to the claimant's submissions, paragraph GEN 1.9 of Appendix FM of the Immigration Rules does not permit Human Rights claims to be raised in an appeal under the EEA...
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