Amirteymour v The Secretary of State for the Home Department [2017] EWCA Civ 353

Case No C5/2015/3681[2017] EWCA Civ 353
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/05/2017
Before
LORD JUSTICE BEATSONLORD JUSTICE RYDERSENIOR PRESIDENT OF TRIBUNALSLORD JUSTICE SALES
Between
Nasrolah AmirteymourAppellantThe Secretary of State for the Home DepartmentRespondent
Michael Biggs (instructed by Solacexis Solicitors) for AppellantAndrew Deakin (instructed by Government Legal Department) for RespondentHearing Hearing date: 1 March 2017
Judgment
[1]This appeal is concerned with the extent to which an individual appealing to the First-tier Tribunal (“FTT”) against a decision of the Secretary of State to refuse to issue a derivative residence card under the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”) is entitled to introduce a distinct human rights claim for leave to remain in the United Kingdom in that appeal. In the decision under appeal to this court, the Upper Tribunal held that introduction of a new human rights claim in the proceedings before the FTT in this way is not permissible. If the individual wishes to make a claim for leave to remain based on human rights, he needs to make a relevant application to the Secretary of State to rely on those rights.

Factual background

[2]The appellant, Nasrolah Amirteymour, is a citizen of the USA originally from Iran, born on 8 November 1956, who entered the United Kingdom on 26 April 2013 with entry clearance as a visitor for six months but who has overstayed and continued to live here for extended periods since then. He has a daughter, D, who is a British citizen born on 11 October 2005. The appellant originally maintained that he was the primary carer for D.[3]On 14 August 2013 the appellant applied for a derivative residence card as confirmation of his right of residence in the UK under EU law as D’s primary carer, relying on the judgment of the CJEU in Case C-34/09 Ruiz Zambrano [2011] ECR I-0000; [2012] QB 265 and the EEA Regulations. In support of his application he provided various documents, including a custody agreement regarding D between himself and D’s mother, Shadi Mahsa, his ex-wife. He also sought to rely on Article 8 of the European Convention on Human Rights, but did not make the appropriate application under the relevant Immigration Rules contained in Appendix FM to rely on his Article 8 rights as reflected in the Rules.[4]By a decision letter dated 21 February 2014 the appellant’s application was refused by the Secretary of State, who said that he had not provided evidence as to why D’s mother would be unable to care for D in the UK if he had to leave and that the custody agreement appeared to show that Ms Mahdi was D’s primary carer. Therefore the appellant could not show that he fell within the principle established in Ruiz Zambrano and he did not satisfy the requirements for grant of a derivative residence card under regulations 15A and 18A of the EEA Regulations. The Secretary of State observed that he had not made an application under the relevant Immigration Rules in relation to private or family life. She pointed out “that a decision not to issue a derivative rights residence card does not require you to leave the United Kingdom if you can otherwise demonstrate that you have a right to reside under the Regulations”, but also stated that since he seemed to have no alternative basis of stay in the UK he should make arrangements to leave. No removal directions were issued.[5]The appellant appealed to the FTT. His grounds of appeal asserted, among other things, that the refusal of his application for a derivative residence card was “not in accordance with the immigration rules” and was incompatible with his Convention rights under Article 8, as well as maintaining that the decision “breaches rights which he has as a member of an EEA national’s family under Community Treaties relating to entry to or residence in the UK”. However, at the hearing of his appeal before the FTT on 11 November 2014, the appellant’s counsel at that hearing indicated that he did not pursue his claim under the EEA Regulations because he accepted that he was not D’s primary carer. Instead, the appellant sought to base his appeal solely upon his rights under Article 8. He relied upon Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 and submitted that it would be disproportionate to expect him to return to the USA to make an application for leave to enter under the Immigration Rules.[6]The FTT dismissed his appeal. It found that the appellant had previously been able to maintain a satisfactory family life with D by frequent visits from the USA. He had not been responsible for D’s upbringing since he divorced Ms Mahdi in 2012. Refusal of a residence card did not involve an interference with the appellant’s family life with D of such severity as to engage Article 8. As regards Chikwamba, the appellant had not shown that he would be able to satisfy the requirements of the Immigration Rules for leave to enter on the basis of his family relationship with D, so it would not be disproportionate to expect him to leave.[7]The appellant sought permission to appeal to the Upper Tribunal on the basis of his claim under Article 8. A different FTT judge granted permission to appeal, whilst also noting that the Upper Tribunal would need to consider whether the FTT should have considered Article 8 at all.[8]The appellant’s case was heard by the Upper Tribunal together with various other cases, since they each raised the same question relating to the right of appeal under regulation 26 of the EEA Regulations. This was whether a human rights challenge to removal could be brought in such an appeal when no notice under section 120 of the Nationality, Immigration and Asylum Act 2002 has been served and where no EEA decision to remove has been made. The Secretary of State’s case was that an appellant may only pursue grounds of appeal which are related to the underlying decision under challenge; that the decision in the present case to refuse to issue the appellant with a derivative residence card did not require consideration of Article 8; and since the Secretary of State had chosen not to issue a section 120 notice, the appellant was not entitled to raise a distinct claim based on Article 8 in his appeal to the FTT.[9]In the decision now under appeal to this court, the Upper Tribunal accepted the Secretary of State’s submission. It held that where no notice has been served by the Secretary of State pursuant to section 120 of the 2002 Act and where no decision to remove has been made pursuant to the EEA Regulations, an appellant cannot in an appeal made pursuant to regulation 26 of the EEA Regulations bring a human rights challenge to removal. The Upper Tribunal also held that the decision of the FTT in the appellant’s case did not involve the making of any material error of law and so upheld its decision to dismiss the appellant’s appeal against the Secretary of State’s decision to refuse to issue a derivative residence card. This was on the basis that the appellant abandoned his case based on the EEA Regulations at the outset of the hearing before the FTT. Any problem with the FTT’s reasoning in relation to Article 8 could not be a material error, because the FTT had no jurisdiction to entertain the appellant’s new case based on Article 8.

The legal framework

[10]The appeal relates to the legislative provisions in force at the time of the hearing before the FTT. Changes were made to the appeal rights under the EEA Regulations which took effect on 6 April 2015, but transitional provisions stipulate that the changes have no effect in relation to an appeal against an EEA decision taken before that date.[11]Section 82 of the Nationality, Immigration and Asylum Act 2002 provides in material part 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) … … (4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.” (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) … …[12]Section 84 of the 2002 Act provides in material part as follows; “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; (b) that the decision is unlawful by virtue of Article 20A of the Race Relations (Northern Ireland) Order 1997 or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1) of that Act; (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 Community 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). …” (a) that the decision is not in accordance with immigration rules; (b) that the decision is unlawful by virtue of Article 20A of the Race Relations (Northern Ireland) Order 1997 or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1) of that Act; (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 Community 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.[13]Section 85 of the 2002 Act provides:
“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(1) 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. (4) On an appeal under section 82(1), 83(2) or 83A(2) against a decision the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision. (5) But subsection (4) is subject to the exceptions in section 85A.”
[14]Section 86 of the 2002 Act provides in material part as follows: “86 Determination of appeal(1) This section applies on an appeal under section 82(1) …(2) The Tribunal must determine – (a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and (b) any matter which section 85 requires it to consider.(3) The Tribunal must allow the appeal in so far as it thinks that – (a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or (b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently. … (5) In so far as subsection (3) does not apply, the Tribunal shall dismiss the appeal.” (a) any matter raised as a ground of appeal (whether or not by virtue of section 85(1)), and (a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or (b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.[15]Regulation 15A of the EEA Regulations sets out a derivative right of residence for a person who is the primary carer for a child in the United Kingdom who is a relevant EEA national. Regulation 18A(1) provides that the Secretary of State must issue a person with a derivative residence card on application and on production of a valid passport or relevant identity card and proof that the applicant has a derivative right of residence under regulation 15A.[16]Regulation 2(1) of the EEA Regulations sets out definitions of terms used in the Regulations. It states:
“’EEA decision’ means a decision under these Regulations that concerns – (a) a person’s entitlement to be admitted to the United Kingdom; (b) a person’s entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card; (c) a person’s removal from the United Kingdom; or (d) the cancellation, pursuant to regulation 20A, of a person’s right to reside in the United Kingdom; But does not include decisions under regulations 24AA (human rights considerations and interim orders to suspend removal) or 29AA (temporary admission in order to submit case in person).”
[17]Regulation 26 of the EEA Regulations provides rights of appeal as follows: “26. Appeal rights(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision.(2) If a person claims to be an EEA national, he may not appeal under these Regulations unless he produces a valid national identity card or passport issued by an EEA State. (2A) If a person claims to be in a durable relationship with an EEA national he may not appeal under these Regulations unless he produces— (a) a passport; and (b) either— (i) an EEA family permit; or (ii) sufficient evidence to satisfy the Secretary of State that he is in a relationship with that EEA national.(3) If a person to whom paragraph (2) does not apply] 3 claims to be a family member who has retained the right of residence or the family member or relative of an EEA national he may not appeal under these Regulations unless he produces— (a) a passport; and (b) either— (i) an EEA family permit; (ia) a qualifying EEA State residence card; (ii) proof that he is the family member or relative of an EEA national; or (iii) in the case of a person claiming to be a family member who has retained the right of residence, proof that he was a family member of the relevant person. (3A) If a person claims to be a person with a derivative right of entry or residence he may not appeal under these Regulations unless he produces a valid national identity card issued by an EEA State or a passport, and either— (a) an EEA family permit; or (b) proof that— (i) where the person claims to have a derivative right of entry or residence as a result of regulation 15A(2), he is a direct relative or guardian of an EEA national who is under the age of 18; (ii) where the person claims to have a derivative right of entry or residence as a result of 8regulation 15A(3) , he is the child of an EEA national; (iii) where the person claims to have a derivative right of entry or residence as a result of 8regulation 15A(4) , he is a direct relative or guardian of the child of an EEA national; (iv) where the person claims to have a derivative right of entry or residence as a result of regulation 15A(5), he is under the age of 18 and is a dependant of a person satisfying the criteria in (i) or (iii); (v) where the person claims to have a derivative right of entry or residence as a result of regulation 15A(4A), he is a direct relative or guardian of a British citizen.(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 First-tier 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 First-tier Tribunal in accordance with that Schedule.” (ii) sufficient evidence to satisfy the Secretary of State that he is in a relationship with that EEA national. (ia) a qualifying EEA State residence card; (ii) proof that he is the family member or relative of an EEA national; or (iii) in the case of a person claiming to be a family member who has retained the right of residence, proof that he was a family member of the relevant person. (i) where the person claims to have a derivative right of entry or residence as a result of regulation 15A(2), he is a direct relative or guardian of an EEA national who is under the age of 18; (ii) where the person claims to have a derivative right of entry or residence as a result of 8regulation 15A(3) , he is the child of an EEA national; (iii) where the person claims to have a derivative right of entry or residence as a result of 8regulation 15A(4) , he is a direct relative or guardian of the child of an EEA national; (iv) where the person claims to have a derivative right of entry or residence as a result of regulation 15A(5), he is under the age of 18 and is a dependant of a person satisfying the criteria in (i) or (iii); (v) where the person claims to have a derivative right of entry or residence as a result of regulation 15A(4A), he is a direct relative or guardian of a British citizen.[18]At the relevant time, paragraph 1 of Schedule 1 of the EEA Regulations stated:
“The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the First-tier 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; section 105 and any regulations made under that section; and section 106 and any rules made under that section.” section 105 and any regulations made under that section; and section 106 and any rules made under that section.”

section 105 and any regulations made under that section; and

[19]Regulation 30 of the EEA Regulations provides that Schedule 2 should have effect. Paragraph 4(8) of Schedule 2 states:
“(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.”
[20]Section 120 of the 2002 Act provides:
“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.” (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. (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. (a) the application mentioned in subsection (1)(a), or (b) an application to which the immigration decision mentioned in subsection (1)(b) relates.”

Discussion

[21]I have identified the short point which arises on this appeal against the background of these intricate provisions. It is whether on an appeal to the Tribunal pursuant to regulation 26 of the EEA Regulations against a decision by the Secretary of State to refuse to issue a derivative residence card, where no removal directions have been issued and no notice has been given under section 120 of the 2002 Act, the Tribunal has jurisdiction to entertain a case based on the Immigration Rules or on Article 8 outside the Immigration Rules. In my judgment, the Upper Tribunal was correct in answering this question in the negative and in holding that there is no such jurisdiction.[22]The starting point for analysis is that the juristic basis for an application for a derivative residence card is distinct from that for an application for leave to enter or leave to remain based upon the Immigration Rules and/or upon Article 8. In the former case, the entitlement is based upon directly effective rights under EU law, as explained in Ruiz Zambrano. Those rights are reflected in regulations 15A and 18A of the EEA Regulations. An application for a derivative residence card is an application made under regulation 18A(1), and the relevant EEA decision is the decision made on that application.[23]In the latter case, the application is made to the Secretary of State to ask her to apply her own immigration policy as set out in the Immigration Rules made pursuant to section 1(4) and section 3(2) of the Immigration Act 1971 (see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10; [2017] 1 WLR 771, [49]-[50]) or to exercise her residual discretion under the 1971 Act to grant leave to enter or leave to remain outside the Rules (see R (Munir) v Secretary of State for the Home Department [2012] UKSC 32; [2012] 1 WLR 2192, at [44]). The Secretary of State may come under an obligation under section 6(1) of the Human Rights Act 1998 (“the HRA”) to grant leave to enter or leave to remain in exercise of her discretion outside the Rules where that is necessary to satisfy a Convention right of the applicant, for example under Article 8. An application for leave to enter or leave to remain under the Immigration Rules or in reliance on Article 8 (or any other Convention right) outside the Rules is different from an application under regulation 18A(1) of the EEA Regulations. It is made on a different form and under different legislative provisions. A decision made in respect of it is an “immigration decision” falling within the scope of section 82(1) of the 2002 Act.[24]In this case, the only application made by the appellant was for a derivative residence card, i.e. an application based on his asserted directly effective EU law rights as reflected in regulations 15A and 18A of the EEA Regulations. He made no parallel application, as he could have done, to rely on the Immigration Rules or to invite the Secretary of State to exercise her residual discretion by reference to Article 8 outside the Rules. This was pointed out to him by the Secretary of State in her decision letter.[25]The decision made by the Secretary of State on the appellant’s application for a derivative residence card was “a decision under [the EEA] Regulations” that concerned his “entitlement to be issued with … a … derivative residence card”, and hence constituted an “EEA decision” as defined in regulation 2(1) of the EEA Regulations. The Secretary of State was not invited by the appellant to take a decision to exercise her discretion under the 1971 Act by reference to Article 8, but, even if she had been, any decision made on such an application would not have been an “EEA decision” as defined. It would have been an “immigration decision” within the scope of section 82(1) of the 2002 Act.[26]A right of appeal under regulation 26(1) is only a right to appeal “against an EEA decision”. Regulation 26(1) creates no right of appeal against any other kind of decision. In particular, it does not create a right of appeal in relation to a claim for leave to enter or remain under the Immigration Rules or by exercise of the Secretary of State’s discretion by reference to Article 8. Where the Secretary of State makes a relevant decision by reference to the Immigration Rules or Article 8, that is an “immigration decision” with a separate right of appeal under section 82(1).[27]In my judgment, the natural meaning of the phrase “may appeal under these Regulations against an EEA decision”, as used in regulation 26(1), is that the appeal right thereby created is in respect of an EEA decision and is to proceed by reference to grounds of claim and grounds of appeal of a kind recognised as creating entitlements under the Regulations themselves (reflecting, as they do, entitlements under EU law). This interpretation means that it was not within the jurisdiction of the FTT in this case to allow the appellant to introduce in his appeal under regulation 26 a claim directed to the exercise of the Secretary of State’s discretionary powers under the 1971 Act and based upon Article 8.[28]This interpretation of regulation 26(1) is supported by a number of additional considerations. First, I think the drafter of the EEA Regulations should be taken to have intended to create a right of appeal with sensible procedural boundaries. It might arguably be acceptable to introduce on appeal against an EEA decision, subject to the Tribunal’s procedural rules and the overriding objective, some new matter going to an entitlement under EU law and the EEA Regulations, since those were the Regulations which the Secretary of State had been asked to apply when making her decision under appeal, and hence it might be within the jurisdiction of the Tribunal under regulation 26(1) to allow this (although I express no concluded view about this). But it would be a recipe for procedural chaos and potentially unfair to the Secretary of State to allow an applicant who applies to the Secretary of State under the EEA Regulations to change his case completely on an appeal under regulation 26 so as to rely on a new claim which does not depend upon any entitlement under the Regulations at all, as has happened in the present case. That would subvert to an unacceptable degree the intended decision-making process, which is supposed to begin with the Secretary of State first having an opportunity to decide whether such a case (here, the appellant’s case based on Article 8) is made out or not, followed by an appeal in respect of that “immigration decision”.[29]These points are reinforced by sub-paragraphs (2) to (3A) of regulation 26. Those sub-paragraphs set out preconditions to be satisfied before an appeal may be brought under that regulation, which are related to the relevant entitlements under EU law which are reflected in the EEA Regulations. These preconditions do not correspond with elements of any appeal based on Article 8 rights. It would be very strange for these preconditions to be imposed if it were intended that the right of appeal under regulation 26 should extend to a right to seek to argue about rights under Article 8, as distinct from entitlements under EU law. Regulation 26(2) to (3A) therefore indicate that the jurisdiction of the Tribunal under regulation 26(1) was indeed to be confined to arguments based on the EEA Regulations.[30]Where a person applies to the Secretary of State for some right or benefit under the EEA Regulations based upon entitlements under EU law, such as a derivative residence card, if the Secretary of State made reference in her decision to Article 8 (say, by mistake or because the applicant had referred to Article 8 in the course of filling in his application form under regulation 18A) as well as to his entitlements under the EEA Regulations, that would be irrelevant surplusage. The Article 8 section of the decision in such a case would not form part of the relevant “EEA decision” and there would be no right of appeal under regulation 26 in respect of that section of the decision. This being so, it would be very odd to infer an intention on the part of the drafter of regulation 26(1) that the Tribunal should nonetheless have jurisdiction to exercise its own discretion to allow an appellant to introduce such a distinct Article 8 claim at a later stage, on the appeal to the Tribunal. On the contrary, the natural inference is that the drafter’s intention was that the Tribunal should not have jurisdiction to do this on an appeal brought pursuant to regulation 26. (Depending on the facts, if the Secretary of State did happen to address Article 8 arguments in her decision letter in such a case, it might be possible to say that the Secretary of State had waived the requirement for an application form to be completed in respect of her exercise of her residual discretion under the 1971 Act by reference to Article 8 and that she had then made two decisions, an “EEA decision” in relation to entitlements under the EEA Regulations and an “immigration decision” within the scope of section 82(1) of the 2002 Act, with distinct rights of appeal under regulation 26(1) and under section 82(1) respectively; but nothing of this kind happened in this case).[31]In my view there is nothing in para. 1 of Schedule 1 to the EEA Regulations which detracts from this analysis. That provision states that section 84(1), except paragraphs (a) and (f), and all of sections 85 to 87 of the 2002 Act “shall have effect in relation to an appeal under these Regulations … as if it were an appeal against an immigration decision under section 82(1) of that Act.” It should be noted that this provision does not deem an “EEA decision” to be an “immigration decision”. In other words, it does not indicate that an EEA decision is to be deemed to be an “immigration decision”, so that an appeal in relation to it might bring in anything which might be raised on an appeal in relation to an “immigration decision” under the 2002 Act. The effect of para. 1 of Schedule 1 is simply to apply sections 85 to 87 and the relevant parts of section 84(1) of the 2002 Act in relation to an appeal against an EEA decision mutatis mutandis - i.e. subject to any changes necessary to adapt those provisions to the context of an appeal against an EEA decision.[32]That para. 1 of Schedule 1 should be read as having this effect is, I think, clear from the fact that section 86(3)(a) has to be read in such a way as to exclude the reference to the “immigration rules” which it contains because, by virtue of para. 1 of Schedule 1, paragraphs (a) and (f) of section 84(1) (which refer to a decision which is not in accordance with the immigration rules and to exercise of a discretion under the immigration rules) do not apply in relation to an appeal against an EEA decision. Similarly, section 85 has to be read in relation to an appeal pursuant to regulation 26(1) against an EEA decision with appropriate adjustments to take account of that context.[33]In the context of an appeal against an EEA decision, the non-application of paragraphs (a) and (f) of section 84(1) is again an indication that there was no intention in the EEA Regulations that there would be a general jurisdiction in the Tribunal to allow a new case based on Article 8 to be ventilated. Section 84(1), so far as applicable to an appeal under regulation 26, sets out in mandatory terms the permissible grounds of appeal for such an appeal. Paragraphs (a) and (f) refer to the Immigration Rules. The Immigration Rules have always covered many if not most cases in which a right to enter or remain could be established under Article 8 (this is particularly true of the new Immigration Rules covering family and private life introduced in July 2012), and a common way in which a claim based on Article 8 arises is as an adjunct to a claim based directly on the Immigration Rules themselves. It would make no conceptual or procedural sense for a Tribunal to have general jurisdiction under regulation 26 to entertain an appeal based on Article 8, but not one based on Immigration Rules which are supposed to be the primary mechanism for satisfying Article 8 or other Convention rights.[34]It is true that paragraphs (c) and (g) of section 84(1), which do apply in relation to an appeal under regulation 26, contemplate as a permissible ground of appeal that the decision is unlawful under section 6 of the HRA as being incompatible with the appellant’s Convention rights. However, those paragraphs only apply in so far as such a ground of appeal might be relevant to an appeal “against an EEA decision”. In my opinion they are made to apply because an “EEA decision” under the EEA Regulations may concern “a person’s removal from the United Kingdom” (see the definition of “EEA decision” in regulation 2(1)), in that if he is refused some EU entitlement to remain in the UK the decision made by the Secretary of State might be to the effect that he has no EU right to be in the UK and that accordingly she now sets removal directions to have him removed. In such a case, by virtue of the definition of “EEA decision” he is afforded an opportunity to raise his Convention rights against removal on his appeal to the FTT under regulation 26(1). It would probably have been sufficient to achieve this outcome just to say that paragraph (g) would apply, assuming that the words “in consequence of [the EEA decision]” in that paragraph directly correspond with the word “concerns” in the phrase “concerns … a person’s removal from the United Kingdom” in the definition of “EEA decision” in regulation 2(1). But in light of the overlap between paragraph (c) and paragraph (g) in relation to section 6 of the HRA, it was not inconsistent with this view on the interpretation of the relevant provisions to refer to both paragraphs, and it might have caused confusion to omit paragraph (c). In my judgment, the fact that paragraphs (c) and (g) of section 84(1) apply for the purposes of para. 1 of Schedule 1 to the EEA Regulations does not expand the jurisdiction of the Tribunal under regulation 26(1) so as to permit it to allow a general case based on Article 8 to be raised in an appeal under regulation 26(1).[35]The position is analogous to that in other situations in which it has been argued that there should be a right of appeal where one has not been granted. For example, in R (Daley-Murdoch) v Secretary of State for the Home Department [2011] EWCA Civ 161 this court refused to impose an obligation on the Secretary of State when refusing an overstayer's application for leave to remain to make at the same time an appealable refusal decision so as to confer a right of appeal. This was because to do so would be contrary to the policy of the 2002 Act, which did not include overstayers in the list in section 82(2) of those who have a right of appeal against a refusal of leave to remain.[36]In my view, the only situation in which the Tribunal has jurisdiction to consider a general case based on Article 8 (not concerning a decision to remove the appellant) in an appeal pursuant to regulation 26(1) is where the Secretary of State or an immigration officer serves a notice under section 120 of the 2002 Act - sometimes called a “one stop notice”: see AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076; [2011] 1 WLR 385, para. [3] - requiring the appellant to set out the entirety of his case as to why he says he is entitled to remain in the UK. Paragraph 4(8) of Schedule 2 to the EEA Regulations provides that section 120 shall apply “if an EEA decision has been taken or may be taken” in relation to the individual concerned. Paragraph 1 of Schedule 1 provides that section 85 of the 2002 Act applies in relation to an appeal pursuant to regulation 26(1). Section 85(2), read as adjusted for that context, provides that “if an appellant under regulation 26(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(1) against the decision appealed against”; and in my view for this purpose the reference to grounds of appeal listed in section 84(1) is to be taken to be a reference to all the grounds of appeal in that provision, including also paragraphs (a) and (f).[37]The object of a “one stop notice” under section 120 is to make the applicant bring forward his whole case regarding his claim to be allowed to remain in the UK so that it can be considered in one go in all its aspects, either by the Secretary of State or (after the Secretary of State has taken a relevant decision) by the Tribunal on an appeal which is on foot in respect of such a decision. Where such a notice is served, the Tribunal has jurisdiction to consider all claims made in response to it, whether or not they were raised before the Secretary of State at the time she made the relevant decision against which the appeal is brought: see AS (Afghanistan); Lamichhane v Secretary of State for the Home Department [2012] EWCA Civ 260; [2012] 1 WLR 3064, [43] (Stanley Burnton LJ); and Patel v Secretary of State for the Home Department [2013] UKSC 72; [2014] AC 651 at [44] (Lord Carnwath JSC) and [67]-[70] (Lord Mance JSC). The effect of para. 4(8) of Schedule 2 to the EEA Regulations and para. 1 of Schedule 1 to the EEA Regulations (read with section 85(2) and (3) of the 2002 Act) is to enable the Secretary of State to require the applicant for a decision regarding his entitlements under the EEA Regulations to bring forward all the immigration claims on which he seeks to rely and incorporate them into his application to be considered in one go as part of that application or, where the Secretary of State has already made an adverse EEA decision in his case, to require the applicant to bring forward all the immigration claims on which he seeks to rely and incorporate them in his appeal against that decision, to be considered in one go by the Tribunal.[38]The claims which might be asserted in response to a section 120 “one stop notice” could include claims based on the Immigration Rules as well as claims based on Article 8 or other Convention rights. In my opinion, where this occurs the Tribunal’s jurisdiction in relation to an appeal against an EEA decision brought pursuant to regulation 26(1) will be expanded to cover all the claims raised by the appellant in his response to the section 120 notice, including both the claims based on the Immigration Rules and general claims based on Convention rights. It is only by giving this effect to the section 120 notice that the object which it is intended to have, to ensure that all immigration claims by that appellant are dealt with in one go through a simplified and truncated procedure, can be achieved. The effect given to a section 120 notice by para. 4(8) of Schedule 2 and by para. 1 of Schedule 1 (read with section 85(2) and (3)) in the context of an EEA decision and an appeal against an EEA decision therefore includes an expansion of the claims which are to be regarded as included in the relevant application made under the EEA Regulations and of the jurisdiction of the Tribunal to consider such claims on an appeal against a relevant EEA decision. Accordingly, for example, if in answer to a section 120 notice served in the course of an appeal against an EEA decision the applicant for leave to remain puts forward a claim based on the Immigration Rules, the Tribunal determining that appeal will also have jurisdiction to determine that claim, notwithstanding the fact that para. 1 of Schedule 1 to the EEA Regulations states that the grounds of appeal in section 84(1)(a) and (f) of the 2002 Act relating to the Immigration Rules do not apply in respect of an appeal pursuant to regulation 26(1). Service of a notice under section 120 confers jurisdiction on the Tribunal in any appeal then on foot to deal with all claims made in response to the notice.[39]No procedural unfairness to the Secretary of State arises from treating the Tribunal’s jurisdiction as being expanded in this way. Such an expansion of jurisdiction only occurs when the Secretary of State or the relevant immigration official opts to serve a section 120 notice. By opting to serve such a notice they take the risk of an expansion of the claims to be addressed in existing proceedings in order to secure the benefit of being able to deal with all claims definitively and promptly in a single set of proceedings: see Patel v Secretary of State for the Home Department at [69] (Lord Mance JSC).[40]Turning to the facts of the present case, no section 120 notice was served by the Secretary of State. Therefore, the jurisdiction which the FTT was required to exercise was the limited basic jurisdiction which arises under regulation 26(1), without any expansion by virtue of section 120 and section 85(2) of the 2002 Act and the related provisions of the EEA Regulations. Under the Tribunal’s basic jurisdiction under regulation 26(1), the FTT had no power to entertain the appellant’s new case based on Article 8.[41]At the hearing before the FTT the appellant abandoned that part of his appeal which did fall within the jurisdiction of the FTT, namely his claim that he was the primary carer of his daughter D. The FTT was therefore bound to dismiss his appeal against the EEA decision made by the Secretary of State. The FTT should not have considered his claim based on Article 8. Even if it erred in dismissing that claim (as to which I express no opinion), that would have been an immaterial error of law, as the Upper Tribunal correctly held.[42]It is also necessary to address a further argument presented by Mr Biggs for the appellant. He contends that the appellant was entitled to raise his new Article 8 case on the appeal to the FTT since it was a permissible ground of appeal pursuant to section 84(1)(g) (as applied to an appeal pursuant to regulation 26) on the basis that the appellant faced removal from the UK “in consequence of” the EEA decision in his case to refuse to issue him with a derivative residence card.[43]For this argument Mr Biggs relies on JM (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1402; [2007] Imm AR 293, in which this court gave a wide interpretation to that phrase in section 84(1)(g) and held that this ground applied in relation to a decision to refuse to vary leave to allow a person to stay in the UK, even though no removal directions were set. The individual in that case was therefore entitled to raise in his appeal to the tribunal his human rights arguments regarding his right to remain in the UK, even though no removal directions had been set and even though they had not been distinctly raised before the Secretary of State (see [22]). However, in that case a section 120 “one stop notice” had been served (see [23]).[44]As this court held in TY (Sri Lanka) v Secretary of State for the Home Department [2015] EWCA Civ 1233; [2016] INLR 401, at para. [34] per Jackson LJ, with whom the other members of the court agreed, it was the service of a section 120 “one stop notice” which was “[t]he crucial feature” of the facts in JM (Liberia) which led to the result in that case. Mr Biggs submits that this is not correct and we should depart from the court’s assessment of this in TY (Sri Lanka). However, in my view this is part of the ratio decidendi in TY (Sri Lanka), as it is the critical part of the reasoning of Jackson LJ for distinguishing JM (Liberia) which would otherwise have had binding effect for the court in the TY (Sri Lanka) case. Therefore we are bound by this part of the decision in TY (Sri Lanka). But in any event I agree with Jackson LJ in his interpretation of Laws LJ’s judgment in JM (Liberia), so far as is relevant for the purposes of an appeal pursuant to regulation 26 against an EEA decision.[45]TY (Sri Lanka) is the decision of this court which is directly relevant to the issues we have to consider. That case concerned an appeal against an EEA decision involving refusal of a family residence card on an application made under the EEA Regulations. No section 120 notice was served by the Secretary of State. The applicant appealed to the FTT on both EEA Regulations grounds and asylum and human rights grounds. The FTT dismissed the appeal on the EEA Regulations grounds and held that in the absence of a section 120 notice the applicant could not raise the asylum and human rights grounds on the appeal. The applicant’s submission on his eventual appeal to this court was, like the submission of the appellant in our case, that by reason of Schedules 1 and 2 to the EEA Regulations he had a right to advance his asylum and human rights claims in the context of his appeal against the EEA decision. That submission was rejected. This court held that in the absence of a section 120 notice the applicant had been correctly confined on his appeal pursuant to regulation 26 to the subject matter of the original decision, which was that he did not fulfil the requirements of the EEA Regulations for a family residence card: see [27]-[35] (Jackson LJ). Jackson LJ also agreed with the conclusion, if not all the reasoning, of the Upper Tribunal in the case of Mr Amirteymour, i.e. in the decision now under appeal in these proceedings: para. [36].[46]I cannot accept the submission of Mr Biggs that TY (Sri Lanka) is distinguishable from our case. It is true that it involved an application under the EEA Regulations for a family residence card rather than a derivative residence card, but I do not consider that this is a material difference. I think we are formally bound by the decision in TY (Sri Lanka) in the circumstances of the present case to dismiss this appeal. But in any event I find Jackson LJ’s reasoning in TY (Sri Lanka) persuasive and whether we are formally bound by his decision or not, I consider that it strongly supports the conclusion to which I would in any event have come for the reasons set out above.[47]Mr Biggs also submitted that section 85(4), as applied in relation to an appeal pursuant to regulation 26, indicates that it was open to the appellant to introduce his new Article 8 case on his appeal to the FTT. I disagree. In fact, I consider that when section 85(4) is read subject to the necessary adjustments pursuant to para. 1 of Schedule 1 to the EEA Regulations so as to take account of the different context of an appeal against an “EEA decision”, it again indicates that the FTT had no jurisdiction to allow the appellant to introduce his new Article 8 case.[48]As so adjusted, section 85(4) provides that on an appeal under regulation 26, the Tribunal “may consider evidence about any matter which it thinks relevant to the substance of the [EEA decision] …”. In this case, the substance of the EEA decision against the appellant was that he had no entitlement to be in the UK pursuant to the principle of EU law set out in Ruiz Zambrano and that he had no entitlement under regulations 15A and 18A to be issued with a derivative residence card: compare AS (Afghanistan) at [80] (Moore-Bick LJ) and [113] (Sullivan LJ), as approved in the judgment of Lord Carnwath JSC in Patel v Secretary of State for the Home Department at [38]-[41]. The appellant’s new Article 8 claim was irrelevant to those matters.

Conclusion

[49]For the reasons given above, I would dismiss this appeal.

The Senior President of Tribunals:

[50]I agree.[51]I also agree.

Cited in 3 later judgments