Amirteymour v The Secretary of State for the Home Department

An appeal under regulation 26 of the Immigration (European Economic Area) Regulations 2006 is ordinarily confined to the EEA decision under challenge and claims arising under those Regulations. It cannot generally be converted into a distinct claim under the Immigration Rules or Article 8 of the European Convention on Human Rights where no removal decision and no section 120 notice exist.

A section 120 notice is the exception. It expands the Tribunal’s jurisdiction to all claims made in response, including claims under the Rules and Convention rights.

The appellant applied for a derivative residence card as the asserted primary carer of his British daughter. His application under the Immigration (European Economic Area) Regulations 2006 was refused. No removal directions or section 120 notice were issued.

Before the First-tier Tribunal, the appellant abandoned his EEA claim and pursued only Article 8, relying on Chikwamba. The First-tier Tribunal dismissed the appeal. The Upper Tribunal upheld that decision and held that, absent a section 120 notice or removal decision, an appeal under regulation 26 could not include a distinct human rights claim. The central issue before the Court of Appeal was whether that jurisdictional conclusion was correct.

1. Appeal dismissed. The judgment of Sales LJ, with which the Senior President of Tribunals and Beatson LJ agreed, held that the Upper Tribunal was correct.
2. An application for a derivative residence card under regulations 15A and 18A of the Immigration (European Economic Area) Regulations 2006 rests on directly effective EU-law rights. It is legally distinct from an application for leave under the Immigration Rules or from an application for leave outside the Rules based on Article 8. The resulting decisions are different statutory decisions: an EEA decision under the Regulations and an immigration decision under section 82 of the Nationality, Immigration and Asylum Act 2002 (paras [21]-[26]).
3. Regulation 26 creates a right of appeal against an EEA decision only. Its basic jurisdiction is confined to the subject matter of that decision and grounds connected with entitlements under the EEA Regulations. The First-tier Tribunal therefore had no jurisdiction to entertain the appellant’s new Article 8 claim. The exclusion of the Immigration Rules grounds in Schedule 1 reinforced that conclusion (paras [27]-[34]).
4. The position changes if a section 120 notice is served. Read with paragraph 4(8) of Schedule 2 and paragraph 1 of Schedule 1 to the EEA Regulations, sections 85(2) and (3) of the 2002 Act give the Tribunal jurisdiction to consider all claims made in response to the notice, including claims under the Immigration Rules and Convention rights. The Secretary of State accepts the procedural risk of that expanded jurisdiction in return for resolving all claims in one set of proceedings (paras [36]-[39]).
5. Section 85(4), properly adjusted to the EEA context, permits evidence relevant to the substance of the EEA decision. The appellant’s Article 8 claim was irrelevant to whether he had an EU-law derivative right or entitlement to a derivative residence card (paras [47]-[48]). The court followed TY (Sri Lanka) [2015] EWCA Civ 1233 and distinguished JM (Liberia) [2006] EWCA Civ 1402 because the latter involved a section 120 notice.
6. Since the appellant abandoned the only claim within the First-tier Tribunal’s jurisdiction, that Tribunal was bound to dismiss the appeal against the EEA decision. Any error in considering the Article 8 claim was immaterial (paras [40]-[41], [49]-[51]).

1. Court of Appeal (Civil Division): dismissed the appeal against the Upper Tribunal’s decision: [2017] EWCA Civ 353.
2. Upper Tribunal (Immigration and Asylum Chamber): upheld the First-tier Tribunal’s dismissal and held that, without a section 120 notice or removal decision, a regulation 26 appeal could not include a distinct human rights claim.
3. First-tier Tribunal: dismissed the appeal after the appellant abandoned his EEA claim and pursued Article 8 alone.