AS (Ghana) v Secretary of State for the Home Department

A person whose right to reside derives from EU free-movement law does not require leave under the Immigration Act 1971. A residence permit or card evidences an existing right; it does not create one. The appeal provisions in the Immigration (European Economic Area) Regulations 2006 do not create a parallel form of temporary leave pending appeal. The section 3C mechanism in the Immigration Act 1971 applies to existing limited leave and an application to vary it. Courts cannot enlarge the statutory schemes to confer equivalent status. Where an applicant has no leave, refusal of a later application cannot be a refusal to vary leave or an immigration decision under section 82 of the Nationality, Immigration and Asylum Act 2002.

The appellant, a Ghanaian citizen, had previously held residence rights as the spouse of an EEA national. After the marriage ended, he applied for permanent residence under the Immigration (European Economic Area) Regulations 2006. That application and the related appeal process did not establish a continuing right to reside.

He later applied for leave under the private-life route. The Secretary of State refused the application and stated that there was no right of appeal. The First-tier Tribunal held that no valid appeal existed, and the Upper Tribunal dismissed the appeal. The central issue before the Court of Appeal was whether the appellant was to be treated as having leave after the refusal of his permanent-residence application.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Beatson gave the substantive judgment; Lord Justice Christopher Clarke and Lady Justice Arden agreed.

1. Distinct regimes. The regime under the Immigration Act 1971 requires leave granted by the Secretary of State. The EEA regime is different. EEA rights arise from the person’s status and, for a family member, from the position of the relevant EEA national. A person either has those rights or does not.
2. Effect of residence documents. Relying on Secretary of State for Work and Pensions v Dias C-325/09; [2011] 3 CMLR 40, the court held that a residence permit or card is declaratory. It evidences an existing EU-law right and does not confer that right. The court also referred to Sanneh & Ors v The Secretary of State for Work and Pensions [2015] EWCA Civ 49; [2015] 1 WLR 1867 concerning the automatic effect of EU-law residence rights in domestic law.
3. No equivalent to section 3C leave. Section 3C of the Immigration Act 1971 extends existing limited leave where a timely application is made to vary it and an appeal may follow. The 2006 Regulations provide an appeal against an EEA decision, but contain no corresponding right to remain pending that appeal. Regulation 26 and Schedules 1 and 2 could not be construed as creating such a status. That would be legislative reform, not judicial interpretation.
4. Application and result. The appellant had no leave when he made his later application. The refusal therefore was not a refusal to vary leave and could not be an immigration decision under section 82 of the Nationality, Immigration and Asylum Act 2002. No valid appeal lay. Appeal dismissed.

• Court of Appeal (Civil Division) — In [2016] EWCA Civ 133, dismissed the appeal.
• Upper Tribunal (Immigration and Asylum Chamber) — Dismissed the appeal against the First-tier Tribunal’s preliminary determination that there was no valid appeal.
• First-tier Tribunal — Determined that no valid appeal existed because the appellant’s EEA residence rights did not amount to leave under the Immigration Act 1971.