Amirteymour v The Secretary of State for the Home Department

The Court of Appeal held that an appeal under regulation 26 of the Immigration (European Economic Area) Regulations 2006 is an appeal against an "EEA decision" and does not give the First-tier Tribunal jurisdiction to entertain a distinct Article 8 human rights claim for leave to remain unless the Secretary of State has served a notice under section 120 of the Nationality, Immigration and Asylum Act 2002 (a "one stop notice").

The court explained that applications for derivative residence cards (regulations 15A and 18A) are founded on directly effective EU law and are distinct from applications for leave to enter or remain under the Immigration Rules or by exercise of the Secretary of State's residual discretion under the Immigration Act 1971. Regulation 26 confines appeals to matters concerning entitlements under the EEA Regulations and their procedural preconditions.

Because no section 120 notice had been served and the appellant abandoned his EEA-based claim before the First-tier Tribunal, the Tribunal had no jurisdiction to consider his newly advanced Article 8 case and dismissal of the appeal was correct.

Background and parties

The appellant, a United States citizen originally from Iran, applied for a derivative residence card as the primary carer of his British child relying on Ruiz Zambrano and the EEA Regulations (regulations 15A and 18A). He also made reference to Article 8 but did not complete the separate application process under the Immigration Rules (Appendix FM) for reliance on Article 8 or ask the Secretary of State to exercise residual discretion under the Immigration Act 1971. The Secretary of State refused the derivative residence card; no section 120 notice was served and no removal directions were issued.

Procedural history

• The appellant appealed to the First-tier Tribunal (FTT). At the FTT hearing he abandoned his EEA-based primary carer case and sought to pursue an Article 8 claim. The FTT dismissed the appeal.
• Permission to appeal was granted to the Upper Tribunal, which held that a new human rights claim could not be introduced in an appeal under regulation 26 where no section 120 notice had been served and no decision to remove had been taken. The Upper Tribunal also held there was no material error of law by the FTT.
• The appellant appealed to the Court of Appeal.

Issues framed by the court

• Whether, on an appeal under regulation 26 against refusal of a derivative residence card (an EEA decision), the Tribunal has jurisdiction to entertain a distinct claim for leave to remain based on Article 8 where no section 120 notice has been served and no removal decision has been made.
• Whether the FTT erred in law in entertaining or deciding the appellant's Article 8 claim.

Court's reasoning and conclusions

The court distinguished between an "EEA decision" concerning entitlements under EU law (regulations 15A and 18A) and an "immigration decision" under section 82 of the 2002 Act concerning leave to enter or remain under the Immigration Rules or by exercise of residual discretion under the 1971 Act. Regulation 26 creates a right of appeal only in respect of EEA decisions and the procedural preconditions in regulation 26(2)–(3A) confirm that such appeals are confined to EEA matters.

The court explained that service of a section 120 "one stop notice" expands the Tribunal's jurisdiction so that, if such a notice has been served, the appellant may raise in an appeal under regulation 26 all immigration claims set out in the section 120 response (including Article 8 and claims under the Immigration Rules). In the absence of a section 120 notice, however, a new, distinct Article 8 claim cannot be introduced on an appeal under regulation 26. Because no section 120 notice had been served and because the appellant abandoned his EEA case at the FTT, the Tribunal lacked jurisdiction to consider the new Article 8 claim and dismissal of the appeal was correct.

Wider implications

The court noted that the procedure of a section 120 notice is the mechanism by which the Secretary of State or an immigration officer may require an applicant to present all grounds for remaining in the United Kingdom so that they can be dealt with in a single procedure; absent such a notice the EEA appeal process has sensible procedural boundaries and does not permit wholesale substitution of an immigration strategy.

Appeal dismissed. The Court of Appeal agreed with the Upper Tribunal that regulation 26(1) of the EEA Regulations gives the FTT jurisdiction only in respect of an EEA decision and does not permit a litigant to introduce a distinct Article 8 claim for leave to remain on an EEA appeal unless a section 120 "one stop notice" has been served; the appellant had abandoned his EEA-based claim and no section 120 notice had been served, so the FTT had no jurisdiction to hear his Article 8 case.

Appeal to the Court of Appeal from the Upper Tribunal (Immigration and Asylum Chamber), which had upheld the First-tier Tribunal's dismissal of the appellant's appeal against refusal of a derivative residence card. The proceedings began in the First-tier Tribunal, permission to appeal to the Upper Tribunal was granted, and the Upper Tribunal's decision was then appealed to the Court of Appeal.