Nasrolah Amirteymour & Anor v The Secretary of State for the Home Department

An appeal against an EEA decision concerning residence documentation cannot be used to bring a human-rights challenge to a future removal where no removal decision has been made and no notice under section 120 has been served. A right of residence under EU law, and documentation confirming it, are legally distinct from leave to remain under the domestic immigration system.

The refusal of a residence document does not itself alter the appellant’s immigration status or make removal a consequence of that decision. Section 85 permits evidence relevant to the existing EU-law residence issue, including a different route to such a right. It does not permit the substitution of a claim for leave to remain based on article 8. Paragraph GEN.1.9 of Immigration Rules cannot enlarge the Tribunal’s statutory jurisdiction.

Four linked appeals concerned refusals or revocations of residence documentation under the Immigration (European Economic Area) Regulations 2006. The claimants, who relied on asserted EU or derivative residence rights, also advanced article 8 claims. In each case, the Secretary of State had not made an EEA removal decision and had not served a section 120 notice.

The First-tier Tribunal had dismissed the EEA appeals. It had either dismissed or allowed the associated article 8 grounds. The common issue before the Upper Tribunal was whether a human-rights challenge to removal could be brought within the EEA appeals in those circumstances.

1. The Tribunal held that a human-rights challenge to removal was outside its jurisdiction in each EEA appeal. Where there is neither a section 120 notice under the Nationality, Immigration and Asylum Act 2002 nor an EEA decision to remove, article 8 cannot be used to challenge removal in an appeal under regulation 26 of the Immigration (European Economic Area) Regulations 2006.

2. The statutory distinction was decisive. An EU-law right of residence arises independently of an act by the Secretary of State. A residence card is confirmatory and does not confer the underlying right. By contrast, leave under the Immigration Act 1971 is an act of the Secretary of State. Refusal of a residence document did not alter the claimants’ status. Any later removal would arise from their lack of a right to remain, rather than in consequence of the documentation decision.

3. The Tribunal followed the jurisdictional analysis in Lamichhane v Secretary of State for the Home Department [2013] EWCA Civ 260. Section 85(4) could admit evidence bearing on the substance of the EU-law residence issue, including a different route to an EEA residence document. It could not permit an entirely different claim for leave to remain on article 8 grounds.

4. JM (Liberia) [2006] EWCA Civ 1402 did not assist. Its reasoning concerned refusal of leave to remain, where removal would follow from the decision. That factual and legal basis was absent here. Paragraph GEN.1.9 of Immigration Rules could disapply an application-validity requirement within Appendix FM, but could not expand statutory appellate jurisdiction.

5. The First-tier Tribunal’s decisions in the Amirteymour and Tijani/Jamiu appeals were upheld. Its article 8 decisions in the Izvira and HF/AN appeals were set aside for want of jurisdiction, and those appeals were remade and dismissed on all grounds. The anonymity order in respect of HF and AN was maintained.

• Upper Tribunal (Immigration and Asylum Chamber): determined the linked appeals and held that the First-tier Tribunal lacked jurisdiction to determine the article 8 grounds in appeals limited to EEA documentation decisions.
• First-tier Tribunal: dismissed the EEA appeals. It dismissed article 8 grounds in the Amirteymour appeal, did not determine them in the Tijani/Jamiu appeals, and allowed them in the Izvira and HF/AN appeals.