Anna Oksuzoglu v The Secretary of State for the Home Department

In an EEA appeal, a new matter includes an EU ground of appeal as well as a ground listed in section 84 of the Nationality, Immigration and Asylum Act 2002. The First-tier Tribunal may consider such a matter only with the Secretary of State’s consent.

The transitional scheme under the Immigration (European Economic Area) Regulations 2016 applies according to the date of decision, rather than simply the date of application. Decisions made on or after 1 February 2017 are treated as made under the 2016 Regulations. Regulation 9 applies to decisions made on or after 25 November 2016. The 2006 Regulations otherwise govern only applications made before 25 November 2016 and decided before 1 February 2017.

The appellant, a Ukrainian national, applied for a residence card as the spouse of a British citizen who had lived and worked with her in Cyprus before returning to the United Kingdom. The Secretary of State refused the application, finding that their Cypriot residence was not genuine.

The First-tier Tribunal dismissed her appeal. It found that the sponsor had worked in Cyprus and that the couple had lived there together, but that their residence was not genuine for the purposes of regulation 9 of the Immigration (European Economic Area) Regulations 2016.

On appeal, the appellant contended that the Tribunal should have applied the 2006 Regulations. She also relied, for the first time, on the sponsor’s Cypriot nationality and his alleged exercise of Treaty rights in the United Kingdom. The central issues were whether that alternative basis was a new matter and which EEA Regulations governed the application.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no error of law and remained in force.

2. Under paragraph 1 of Schedule 2 to the Immigration (European Economic Area) Regulations 2016, section 85 of the Nationality, Immigration and Asylum Act 2002 applies to EEA appeals as modified. A new matter includes an EU ground of appeal. The claim based on the sponsor’s Cypriot nationality depended on a factual matrix not considered by the Secretary of State and was legally and factually distinct from the return-route claim. It was therefore a new matter within section 85(6).

3. The Secretary of State had not consented, expressly or impliedly, to that new matter under section 85(5). A written note raised during the First-tier Tribunal hearing, and referred to in oral submissions, could not amount to the respondent’s consent. The First-tier Tribunal consequently had no jurisdiction to decide that alternative claim.

4. The 2016 Regulations governed the outstanding application. Schedule 5 concerned only the transitory period from 25 November 2016 to 1 February 2017 and, in any event, applied the amended regulation 9. Schedule 6, paragraph 4 required an application made but not determined before 1 February 2017 to be treated as made under the 2016 Regulations. Since the decision was made on 26 April 2017, the First-tier Tribunal correctly applied regulation 9 of those Regulations.

5. The First-tier Tribunal was required to make a qualitative assessment of whether the couple’s residence in Cyprus was genuine. Its underlying factual findings were not challenged. The appellant therefore established no error in its conclusion.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and held that the First-tier Tribunal had made no error of law: [2018] UKUT 385 (IAC).
• First-tier Tribunal: dismissed the appeal in a decision dated 22 May 2018, finding that the parties’ residence in Cyprus was not genuine for regulation 9 purposes.