Shahbaz Ahmad v The Secretary of State for the Home Department

A notice of removal window is not, without more, an EEA decision under the Immigration (European Economic Area) Regulations 2006. It records liability to removal and does not itself found an appeal. A decision concerning removal is an EEA decision only where it is made under those Regulations, including the removal powers in regulation 19.

An in-country EEA appeal cannot be used to determine a human-rights claim certified as clearly unfounded, since that appeal may be brought only from outside the United Kingdom. A section 120 statement must be made to the Secretary of State or an immigration officer. A bare Article 8 assertion contained only in tribunal grounds of appeal is not such a statement.

The appellant, a Pakistani national, appealed against the refusal of an EEA residence card. Before that appeal was heard, the Secretary of State served a notice of removal window with a One-Stop notice, refused the appellant's Article 8 claim, and certified it as clearly unfounded.

The First-tier Tribunal held that no appeal lay against the removal-window notice and dismissed the residence-card appeal. It found that the appellant could not satisfy regulation 9 of the Immigration (European Economic Area) Regulations 2006. The Upper Tribunal considered whether the removal-window notice was appealable, whether the appellant could rely on derivative EEA rights, and whether Article 8 had to be determined in the residence-card appeal.

1. Appeal dismissed. The First-tier Tribunal made no material error of law.

2. A Form RED.0004 (fresh) notice of removal window is a statement of a person's existing liability to removal. It is not a decision under the Immigration (European Economic Area) Regulations 2006, and therefore is not an EEA decision within regulation 2. Although such a notice concerns removal in an ordinary sense, an EEA decision concerning removal must be made under the Regulations. The appellant was not being removed under regulation 19.

3. The appellant could not invoke regulation 9. He had not lived with his British-citizen wife in Spain and did not satisfy regulation 9(2)(b). Carpenter v Secretary of State for the Home Department [2002] EUECJ C-60/00 was inapplicable. Its fact-specific conclusion concerned a spouse whose presence in the United Kingdom supported a genuine family life while the British citizen provided cross-border services.

4. Section 85(1) of the Nationality, Immigration and Asylum Act 2002 did not permit the Tribunal to incorporate and decide the certified human-rights refusal within the in-country residence-card appeal. Sections 92 and 94 required any appeal against that certified claim to be brought from outside the United Kingdom.

5. The Article 8 assertion in the grounds of appeal was not a section 120 statement. It was bare and did not provide additional reasons or grounds. More fundamentally, a section 120 statement must be supplied to the Secretary of State or an immigration officer, enabling the executive to respond before the Tribunal is required to determine the matter. It cannot be made solely in grounds filed with the Tribunal.

6. The Tribunal further observed that, if Article 8 had fallen for consideration, it would have been a new matter requiring the Secretary of State's consent under section 85(5).

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal's decision, finding no material error of law.
• First-tier Tribunal: held that no appeal lay against the notice of removal window and rejected the appellant's residence-card appeal.