Tatsanee Srisuwan Munday v Immigration Officer, Coquelles

An appeal against an EEA decision under the Immigration (EEA) Regulations 2016 is confined to the EU ground of appeal prescribed by Schedule 2, paragraph 1. The Tribunal cannot determine an Article 8 claim merely because the appellant has raised family life, or may have made a human rights claim. Jurisdiction arises only where a section 120 notice and responsive statement bring that ground into the appeal, or where there is a separate decision refusing a human rights claim.

A purported Article 8 case based on the substance and proportionality of family life is factually distinct from an EU-law claim to admission as the spouse of a returning British citizen. If it were otherwise within the Tribunal’s jurisdiction, it would be a new matter requiring the Secretary of State’s consent.

Tatsanee Srisuwan Munday, a Thai citizen, sought admission at Coquelles in March 2017 as the spouse of a British citizen. She relied on the Surinder Singh principle and regulation 9 of the Immigration (EEA) Regulations 2016.

The Immigration Officer refused admission under regulations 11 and 9. The First-tier Tribunal dismissed her appeal. It held that she could not satisfy the Regulations and that it lacked jurisdiction to consider Article 8 of the ECHR. It also held that an Article 8 case would be a new matter requiring the Secretary of State’s consent.

The appellant appealed, relying on Article 8, the CJEU decision in SSHD v Banger [2018] Imm AR 1205, and an asserted error in refusing an adjournment. The central issue was whether an EEA appeal could include an Article 8 ground in these circumstances.

1. Appeal dismissed. The First-tier Tribunal made no error of law in dismissing the appeal.

2. The refusal of admission was an EEA decision under the Immigration (EEA) Regulations 2016. Schedule 2, paragraph 1 applies section 84 of the Nationality, Immigration and Asylum Act 2002 on the express basis that the sole permitted ground is breach of EU Treaty rights. Accordingly, absent a section 120 notice and a statement advancing human-rights grounds, the Tribunal could determine only whether the EEA decision was lawful under EU law.

3. The appellant could not obtain Article 8 jurisdiction merely by showing that her application at the border might amount to a human rights claim. The Immigration Officer’s decision was solely a decision under the 2016 Regulations and did not refuse a human rights claim. A human-rights appeal would have arisen only if there had been a separate refusal decision under section 82(1)(b), which section 85(1) would then require the Tribunal to treat as included in the appeal.

4. The Article 8 issue was therefore outside the Tribunal’s jurisdiction. In any event, it would have been a new matter: an Article 8 case required consideration of the substance of the marital relationship, the effect of exclusion and proportionality, rather than the EU-law conditions for entry. It could not have been considered without the Secretary of State’s consent.

5. SSHD v Banger was immaterial to the challenged decision. At the relevant date the appellant was a spouse, not an unmarried durable partner. Her entitlement therefore depended on regulation 9. Her husband had not been working in an EEA state immediately before the attempted return and was not a qualified person in the United Kingdom. She consequently had no right of admission on a Surinder Singh basis.

6. The refusal to adjourn pending Banger was justified because that decision could not affect the appellant’s appeal.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal’s dismissal.
• First-tier Tribunal: dismissed the appeal against the refusal of admission under the Immigration (EEA) Regulations 2016. Its citation is not stated in the judgment.