The Court of Appeal has decided that in an appeal brought under Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (‘EEA Regulations’), the immigration tribunal has no jurisdiction to consider a claim for asylum or leave to remain on human rights grounds unless the Secretary of State has served a “one-stop” notice on the Appellant under section 120 of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’), or made a decision to remove the Appellant. Both are matters within the discretion of the Secretary of State, who is under no obligation to take either step.
The Appellant’s (A’s) father had left Sri Lanka for Germany and obtained refugee status. A became involved in the civil war as a member of the Tamil Tigers (‘LTTE’) in Sri Lanka and left for the UK where he claimed asylum. He was refused and became appeal rights exhausted. His father had, by that time, acquired German nationality and came to the UK exercising his treaty rights as an EEA national to reside there.
A was then convicted of immigration offences having obtained a false passport and the Secretary of State served a deportation notice on him. A applied for asylum again and raised human rights grounds. The claim was rejected and the Secretary of State served another deportation notice.
A then made representations that were treated as a request to revoke the deportation order, which the Secretary of State refused, certifying A’s claim as “clearly unfounded” under section 94 NIAA 2002. This granted A an out of country right of appeal.
A then applied for an EEA residence card as a dependent family member based on his father’s residence in the UK. The application was refused and A appealed to the tribunal asserting that he met the criteria in the EEA Regulations and that he was entitled to leave to remain on asylum and human rights grounds.
Lord Justice Jackson giving judgment of the Court of Appeal stated the legal principles were clarified in Lamichhane v Secretary of State for the Home Department  EWCA Civ 260, where it was held that the Secretary of State had the discretion to serve a section 120 (‘one-stop’) notice entitling an appellant to raise different grounds for leave to remain that were different to that which was the subject of the Secretary of State’s decision.
The Supreme Court case of Patel v Secretary of State for the Home Department UKSC 72, adds that a refusal by the Secretary of State to make a removal decision at the same time as refusing an application for leave is lawful.
The import of these judgments is that: “when the Secretary of State refuses to grant or extend leave to remain, she has a choice whether or not to serve a one stop notice under section 120 and whether or not to make a removal decision” (paragraph 25).
Where no section 120 notice has been served, the effect of Schedules 1 and 2 of the EEA Regulations do not entitle an Appellant to rely on asylum and / or human rights grounds in their appeal against the refusal to issue an EEA residence card.
Lord Justice Jackson relied on paragraph 4(8) of Schedule 2 of the EEA Regulations, the effect of which was to require the Secretary of State to have served a section 120 notice under the 2002 Act before an Appellant can raise human rights grounds following a decision to refuse an application for an EEA residence permit (see paragraph 26).
At paragraphs 32 – 33, the Court considered the case of JM v Secretary of State for the Home Department  EWCA Civ 1402 and rejected the submission that where no removal decision had been made, a removal following the refusal of an EEA residence card would be “in consequence of” that refusal, thereby putting the UK in potential breach of the 1950 and 1951 Conventions.
The Court of Appeal, taking a narrow view of JM, concluded that the critical point in that case was that, although no removal decision had been made, the Secretary of State for the Home Department had served a section 120 notice. The effect of this was that where M’s appeal failed, the Secretary of State for the Home Department could remove them without any further opportunity to raise additional grounds. In the present case, no “one-stop” notice had been issued. Notably, the Court did not deal with any of the public policy arguments discussed in JM at paragraphs 17 and 18, which considered the effect of the regime on the lives of Claimants.
The Court considered that the Upper Tribunal (‘UT’) case of Amirteymour v Secretary of State for the Home Department  UKUT 00466 (IAC) reached the same conclusion, albeit by a different route.
Given the underlying complexity of the legislation (plus amendments) and case law in this area, the Court of Appeal judgment is rather short. This case fortifies the conclusion of the UT in Amirteymour, that “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”. The decision in Amirteymour provides another basis for not permitting human rights to be raised – namely, that JM Liberia concerned non-EEA applications for leave to remain and therefore its principles cannot readily be applied to EEA applications (see paragraph 62 to 63 in that case).
If the Secretary of State has not served a person with a section 120 notice or made a decision to remove a person, that person will have to make a fresh application (and, in the case of human rights claims, pay another set of fees) before being allowed to advance a claim for leave to remain based on human rights and/or asylum grounds in the tribunal. They will not be allowed to raise different grounds to their application under the EEA Regulations, even if that application contains evidence relevant to the human rights claim and regardless of the strength of their claim/s.
Claimants who are refused leave under the EEA Regulations in these circumstances will not usually be able to claim any benefits and may have also have no right to work in the UK. If not entitled to a fee waiver, they may face the heavy task of paying for a fresh human rights application (currently £649 for a single applicant, rising to £2,596 where there are 3 dependents), or waiting for the Secretary of State to make a removal decision, which they can then appeal against, with all the uncertainty that entails. Significant inconvenience on applicants is an inevitable consequence of the Court of Appeal and the UT’s decisions, given the Home Office’s decision-making process.
Lastly, the Appellant in TY (Sri Lanka) made written representations about the effect of EU law, specifically the Charter of Fundamental Rights of the European Union (‘CFR’), but these arguments were not pursued orally and the judgment dismisses them without any elaboration or substantive reasoning. There may be very limited scope for the CFR arguments to be raised in any particular case, but the blunt indication from the Court of Appeal (albeit without any overt reasoning or clear explanation of its views) is that they will fail.
[A version of this blog post appeared in the Rights in Exile Newsletter, January 2016]