TY (Sri Lanka) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lady Justice Black,Lord Justice Briggs |
| Judgment Date | 01 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1233 |
| Docket Number | Case No: C5/2013/1110 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 December 2015 |
[2015] EWCA Civ 1233
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
IA152032012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lady Justice Black
and
Lord Justice Briggs
Case No: C5/2013/1110
Ms Shivani Jegarajah and Ms Claire Physsas (instructed by Duncan Lewis Solicitors) for the Appellant
Mr John McKendrick (instructed by The Government Legal Department) for the Respondent
Hearing date: Tuesday 3rd November 2015
This judgment is in three parts, namely:
| Part 1. Introduction | Paragraphs 2 to 5 |
| Part 2. The facts | Paragraphs 6 to 19 |
| Part 3. The appeal to the Court of Appeal | Paragraphs 20 to 38 |
This is an appeal against a decision of the Upper Tribunal that (i) the appellant has no derivative right to remain in the United Kingdom under the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") and (ii) in the context of the appellant's appeal under the EEA Regulations the Upper Tribunal had no jurisdiction to consider a claim for asylum or leave to remain on human rights grounds. The issue before this court is whether the Upper Tribunal was right to confine itself to the appellant's claim under the EEA Regulations.
In this judgment I shall refer to a claim for asylum or a claim to remain in the UK on human rights grounds as "asylum". I shall refer to the Nationality, Immigration and Asylum Act 2002 as "the 2002 Act". Needless to say, most of the provisions of the 2002 Act which are relevant to this appeal have undergone substantial amendments since the events with which we are concerned. The relevant provisions, as they were set out at the time of the decisions under appeal, read as follows:
" 82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part "immigration decision" means—
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),
….
(j) a decision to make a deportation order under section 5(1) of that Act, and
(k) refusal to revoke a deportation order under section 5(2) of that Act.
….
84 Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision is not in accordance with immigration rules;
….
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the EU Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.
(2) In subsection (1)(d) "EEA national" means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).
….
85 Matters to be considered
(1) An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).
(2) If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84 against the decision appealed against.
(3) Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.
….
120 Requirement to state additional grounds for application
(1) This section applies to a person if—
(a) he has made an application to enter or remain in the United Kingdom, or
(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.
(2) The Secretary of State or an immigration officer may by notice in writing require the person to state—
(a) his reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which he should not be removed from or required to leave the United Kingdom.
(3) A statement under subsection (2) need not repeat reasons or grounds set out in—
(a) the application mentioned in subsection (1)(a), or
(b) an application to which the immigration decision mentioned in subsection (1)(b) relates."
The EEA Regulations set out the rights of EEA nationals to reside in the UK. They also set out the conditions which must be satisfied to enable family members of EEA nationals to reside in the UK. The relevant provisions of the EEA Regulations for the purpose of this appeal are:
" General interpretation
2.—(1) In these Regulations—
….
"EEA decision" means a decision under these Regulations that concerns a person's—
(a) entitlement to be admitted to the United Kingdom;
(b) entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or
(c) removal from the United Kingdom;
….
Appeal rights
26.—(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision.
….
(4) A person may not bring an appeal under these Regulations on a ground certified under paragraph (5) or rely on such a ground in an appeal brought under these Regulations.
(5) The Secretary of State or an immigration officer may certify a ground for the purposes of paragraph (4) if it has been considered in a previous appeal brought under these Regulations or under section 82(1) of the 2002 Act.
(6) Except where an appeal lies to the Commission, an appeal under these Regulations lies to the Asylum and Immigration Tribunal.
(7) The provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these Regulations to the Asylum and Immigration Tribunal in accordance with that Schedule.
….
Effect on other legislation
30. Schedule 2 (effect on other legislation) shall have effect.
….
SCHEDULE 1
APPEALS TO THE ASYLUM AND IMMIGRATION TRIBUNAL
The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the Asylum and Immigration Tribunal as if it were an appeal against an immigration decision under section 82(1) of that Act:
section 84(1), except paragraphs (a) and (f);
sections 85 to 87;
sections 103A to 103E;
section 105 and any regulations made under that section; and
section 106 and any rules made under that section.
….
SCHEDULE 2
EFFECT ON OTHER LEGISLATION
….
4 (8) Section 120 of the 2002 Act shall apply to a person if an EEA decision has been taken or may be taken in respect of him and, accordingly, the Secretary of State or an immigration officer may by notice require a statement from that person under subsection (2) of that section and that notice shall have effect for the purpose of section 96(2) of the 2002 Act."
Having set out the relevant legislation, I must now turn to the facts.
The appellant is a Sri Lankan citizen, who was born in July 1976. By ethnicity he is a Tamil and he grew up in the Jaffna area. As is well known, a civil war began in Sri Lanka in 1983. In 1985 the appellant's father fled to Germany and successfully claimed asylum. The appellant remained living in the north of Sri Lanka with his mother and siblings. There came a time when the appellant joined the Liberation Tigers of Tamil Eelam ("LTTE").
In December 2001 the appellant fled from Sri Lanka. He arrived in the UK in June 2002 and claimed asylum. The basis of his claim was that he had been an active member of the LTTE before escaping from Sri Lanka. Therefore he was at risk of persecution at the hands of the Sri Lankan authorities. Also, as a deserter, he was at risk of reprisals from the LTTE. The Secretary of State refused the appellant's claim for asylum.
An immigration adjudicator dismissed the appellant's appeal on 23 rd April 2004. The adjudicator accepted that the appellant had been a member of the LTTE, but concluded that by April 2004 he would not be at risk of ill treatment...
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