TY (Sri Lanka) v The Secretary of State for the Home Department

An appeal against an EEA residence-card decision is confined to the subject matter of that decision unless the Secretary of State has served a one-stop notice under section 120 of the Nationality, Immigration and Asylum Act 2002. Schedules 1 and 2 to the Immigration (European Economic Area) Regulations 2006 do not independently permit an appellant to introduce asylum or human-rights grounds.

The Secretary of State has discretion whether to serve a section 120 notice and whether to make a removal decision. A correct refusal of an EEA residence card cannot itself breach the Refugee Convention or the ECHR. Any protection claim must be made separately and determined before removal.

The appellant, a Sri Lankan national, applied for a residence card as the dependent family member of EEA nationals. The Secretary of State refused the application after considering entitlement solely under the Immigration (European Economic Area) Regulations 2006.

The First-tier Tribunal found that the appellant did not satisfy those Regulations. It also held that, because no section 120 one-stop notice had been served, it could not determine asylum and human-rights grounds in the EEA appeal. The Upper Tribunal dismissed a further appeal on the same grounds.

The Court of Appeal considered whether Schedules 1 and 2 to the Regulations nevertheless permitted those protection grounds to be raised in the EEA appeal.

1. Appeal dismissed unanimously. The First-tier Tribunal and Upper Tribunal had correctly confined the appeal to the appellant’s entitlement to a residence card under the Immigration (European Economic Area) Regulations 2006. The appellant did not fulfil the requirements of those Regulations: paras 27 and 38–40.

2. Schedules 1 and 2 to the Regulations did not independently confer a right to advance asylum and human-rights claims in an appeal against an EEA decision. Such additional grounds could have been introduced if the Secretary of State had served a one-stop notice under section 120 of the Nationality, Immigration and Asylum Act 2002, read with paragraph 4(8) of Schedule 2 to the Regulations. No notice had been served, so the appeal remained confined to the subject matter of the residence-card decision: paras 26–27.

3. The Secretary of State was under no duty to serve a section 120 notice and under no duty to make a removal decision. Lamichhane v Secretary of State for the Home Department [2012] EWCA Civ 260 established the former proposition. Patel v Secretary of State for the Home Department [2013] UKSC 72 established the latter: paras 25 and 28.

4. JM v Secretary of State for the Home Department [2006] EWCA Civ 1402 was distinguishable. A section 120 notice had been served there, with the result that the appellant could advance all ECHR grounds and the tribunal was obliged to determine them. The absence of such a notice was the crucial distinction in the present appeal: paras 32–34.

5. A correct refusal of a residence card could not cause a breach of the Refugee Convention or the ECHR. Such a breach could arise only if a later asylum or human-rights claim were wrongly rejected. The appellant remained free to make a fresh protection claim: paras 30 and 35.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The tribunals below had correctly confined the EEA appeal to entitlement to a residence card: [2015] EWCA Civ 1233.
2. Upper Tribunal (Immigration and Asylum Chamber): On 20 February 2013, it dismissed the appeal and upheld both the rejection of entitlement under the EEA Regulations and the refusal to determine asylum or human-rights grounds.
3. First-tier Tribunal: On 5 September 2012, it dismissed the appeal. The appellant did not satisfy the EEA Regulations and, in the absence of a section 120 notice, could not introduce asylum grounds into the residence-card appeal.