The Secretary of State for the Home Department v Aland Osman Jaff

Where an immigration appellant seeks to rely on a ground for remaining which was not part of the application decided by the Secretary of State, the First-tier Tribunal has no jurisdiction to determine that ground unless it was stated in response to a section 120 notice. A statement of additional grounds may be made after an appeal has begun, including shortly before its hearing. It need not follow a prescribed form, but it must identify the new ground with sufficient particularity. Evidence of a relationship, without stating reliance on an EEA national’s status or a claimed right of residence, does not suffice.

The factual availability of a route under the Immigration (European Economic Area) Regulations 2006 may nevertheless be relevant when assessing proportionality under article 8.

The Secretary of State appealed against the First-tier Tribunal’s decision allowing the respondent’s appeal against refusal of leave to remain and proposed removal to Iraq.

The First-tier Tribunal dismissed the asylum and humanitarian-protection grounds, but allowed the appeal under article 8 and under the Immigration (European Economic Area) Regulations 2006. It found that the respondent was in a durable relationship with a Latvian national exercising Treaty rights.

The central issue was whether the First-tier Tribunal could determine a residence claim under the 2006 Regulations when the respondent had made no application under them and had not stated that ground in response to the section 120 notice served with the refusal decision.

1. The Secretary of State’s appeal was allowed in part. The First-tier Tribunal had erred in allowing the appeal on the ground that the decision was not in accordance with the law under the Immigration (European Economic Area) Regulations 2006. That part of its decision was set aside and the appeal was dismissed on that ground.

2. Applying Lamichhane v SSHD [2012] EWCA Civ 260, an appellant may not introduce before the Tribunal a ground for leave to remain which was not the subject of the Secretary of State’s decision, unless it has been raised in a statement responding to a section 120 notice. The claimed EEA route had not formed part of the respondent’s original application.

3. A statement responding to a section 120 notice may be made after an appeal has commenced. Section 85(3) expressly contemplates that timing. No prescribed form is required, but the statement must identify, in substance or form and with some particularity, the additional ground relied on. The respondent’s late evidence of his relationship and his partner’s statement did not state reliance on her EEA status or on a right to reside as her extended family member. His skeleton argument relied only on article 8.

4. The Tribunal’s unchallenged factual finding that the respondent was in a durable relationship meant that he was an extended family member under regulation 8(5). However, even if the EEA ground had been within the Tribunal’s jurisdiction, a residence card under regulation 17(4) remained discretionary for the Secretary of State; it was not an automatic entitlement.

5. The article 8 decision stood. The First-tier Tribunal was entitled to take account of the respondent’s relationship and of his partner’s exercise of Treaty rights when assessing proportionality. With no countervailing factor identified, its conclusion that removal would be disproportionate was open to it.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal only insofar as the First-tier Tribunal had allowed the appeal under the Immigration (European Economic Area) Regulations 2006; preserved the article 8 outcome.
• First-tier Tribunal: Dismissed the asylum and humanitarian-protection grounds, but allowed the appeal under article 8 and on the EEA Regulations ground.