Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11340/2014

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 9 November 2015
On 31 August 2016

Before

UPPER TRIBUNAL JUDGE FINCH

Between

NAFEES-UR-REHMAN ABBASI
(No anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C. Querton of counsel, instructed by Rashid & Rashid Solicitors
For the Respondent: Ms A. B. Weller, Home Office Presenting Officer

DECISION AND REASONS

History of the Appeal

1. The Appellant, who was born on 25 December 1985, is a national of Pakistan. He entered the United Kingdom on 16 December 2009 as a Tier 4 (General) Student migrant on a visa, which was valid until 25 June 2011. He was subsequently granted further leave to remain in the same capacity until April 2013 and during this time he completed an MBA at Anglia Ruskin University in October 2012.

2. On 17 April 2013 he applied for an EEA residence card as the spouse of an EEA national, whom he had married on 4 January 2013. His application was refused on 24 February 2014 on the basis that she had previously been married and was not divorced and, therefore, the Appellant was not able to establish that he was lawfully married to her. The Respondent also asserted that the Appellant had not been able to show that he was in a durable relationship with her and that there was insufficient evidence to establish that his partner was exercising Treaty rights at the time of her divorce.

3. The Appellant appealed and his appeal was heard by First-tier Tribunal Judge Fitzgibbon Q.C. on 14 November 2014. He allowed the Appellant's appeal in a decision promulgated on 24 November 2014. At paragraph 3 of his decision, he noted that the Appellant had not relied on his rights under Article 8 of the European Convention on Human Rights at the time of his application but did so at the hearing.

4. At paragraph 9 of his decision the First-tier Tribunal Judge also noted that the Appellant accepted that he did not comply with the applicable requirements to show that he was a family member or an extended family member of an EEA national. However, in paragraph 19 he found that the particular circumstances of the Appellant's case were not catered for in the Immigration Rules and in paragraph 20 he found that the Appellant had established a strong private life in the United Kingdom for the purposes of Article 8 of the European Convention on Human Rights and that his removal was not required to uphold the public interest in maintaining effective immigration controls.

5. The Respondent applied for permission to appeal on 24 November 2014. In particular, she submitted that the First-tier Tribunal Judge's approach to paragraph 276ADE of the Immigration Rules and section 117B of the Nationality, Immigration and Asylum Act 2002 was legally flawed. First-tier Tribunal Judge Lever granted permission to appeal on 20 January 2015 on the basis that it was arguable that the Judge had not adequately considered the public interest and, in particular, sub-paragraphs 117B(1) and (5) of the Nationality, Immigration and Asylum Act 2002.

6. The Appellant lodged a Rule 24 Response, dated 4 February 2015 and the appeal came before Upper Tribunal Judge Southern and Upper Tribunal Judge Finch on 27 April 2015. At this hearing the Respondent applied to amend her grounds so as to submit that the First-tier Tribunal Judge had no jurisdiction to consider Article 8 of the ECHR. Her application was granted.

7. On 11 May 2015 the Respondent filed and served her amended grounds of appeal and on 22 May 2015 the Appellant served a further Rule 24 response. The matter was set down for an error of law hearing on 15 July 2015. The Upper Tribunal heard oral submissions by both parties but then reserved its decision to await the determination of a Presidential Panel that had already heard the point of law arising in this appeal. Directions in relation to this decision were sent out by Upper Tribunal Judge Southern on 16 July 2015 and the parties were given leave to make written decisions on the Presidential determination within 14 days of it being promulgated.

8. The Appellant filed further submissions on 14 September 2015 and the Respondent filed her further submissions on 21 September 2015. The appeal was subsequently re-listed on 9 November 2015 in front of myself. By this time, the Presidential case, Amirteymour and others (EEA appeals; human rights) [2015] UKUT 00466 (IAC) had been appealed to the Court of Appeal. This necessitated a further adjournment pending the Court of Appeal's decision.

9. I directed that the Appellant's solicitors do file and serve any further submissions within 14 days of handing down of the Court of Appeal's judgment in Amirteymour and that the Respondent do file and serve any further submissions within 14 days thereafter. No such further submissions have been received, despite the Court of Appeal handing down its decision in TY (Sri Lanka) v The Secretary of State for the Home Department [2015] EWCA Civ 1233 on 1 December 2015.

10. I had also granted leave to both parties to apply for a hearing to make oral submissions, if so advised. But again, no such applications have been received. Neither did either party apply for any further directions, as provided for in the directions.

11. The Appellant's solicitors wrote to the Upper Tribunal on 27 June 2016 asking why no decision had been reached in this case, despite the fact that they had failed to seek any further directions or supply any further submissions. They were then given a further seven days form 22 July 2016 to make any further written submissions but have failed to do so.

The Error of Law Hearing

12. At the first error of law hearing on 16 July 2015 the parties accepted that the case due to be heard by the President in Amriteymour was likely to be determinative of the preliminary jurisdictional issue arising in this appeal.

13. The need for the Applicant to make an application under Article 8 of the ECHR if he wished to rely on this provision was stressed in page 3 of the Respondent's refusal letter, dated 24 February 2014. The Appellant did make a bare assertion in his grounds of appeal, dated 4 March 2014, that he had rights under Article 8 of the ECHR.

14. However, in Amirteymour the Upper Tribunal found that "where no notice under section 120 of the 2002 Act has been served and where no EEA decision to remove has been made, an appellant cannot in an appeal under the EEA Regulations being a human rights challenge to removal".

15. Furthermore, at paragraph 26, the President noted that "as can be seen from section 3 of the Immigration Act 1971, there is a distinct difference drawn in the system of immigration control between those who require leave to enter and those who do not. By operation of section 7 of the 1988 Act, those having a right to enter or reside under European Law do not (absent any exclusion or deportation order) require leave to enter or remain. A right to enter or remain (and the conditions placed on that) depends on an action taken by the Secretary of State. In contrast, a right to enter or reside under European Law does not". Therefore, the Upper Tribunal was acknowledging the fact that domestic and European law runs in parallel to each other.

16. As the President went on to make clear in paragraph 31 of his judgement, the "rights granted under EU law and leave granted under the Rules or Immigration Acts are conceptually and legally distinct. Any assertion of a right to leave to remain under the Human Rights Act is thus made on a different juridical basis".

17. He also looked at the correct interpretation of "Schedule 1, paragraph 1 of the EEA Regulations which provides that certain of the provisions of the 2002 Act have effect in relation to an appeal under the regulations as if (emphasis added) it were an appeal against an immigration decision under section 82(1) of that Act. That is not the same as providing that an EEA decision is an immigration decision under the 2002 Act which could have been done. It was thus evidently not the intention to do so". He then went on to note, in paragraph 38, that "the permissible grounds of appeal against an EEA decision expressly exclude grounds (a) and (f) indicating a clear intention that questions arising under the Rules cannot be raised, consistent with the two-fold system described above".

18. In paragraph 39, the President found this to be significant as "since July 2012, when Appendix FM and paragraph 276ADE were incorporated into the Rules, much of the system for consideration of Human Rights i particular Article 8, is now operated under the Rules". At paragraph 42 he added that "any consideration by a court of article 8 issues must now commence with a consideration under the Rules; yet that is an analysis which could not be carried out in an EEA appeal, given that the grounds of appeal prohibit an analysis of whether a decision was not in accordance with the Rules".

19. Further, in paragraph 49 he accepted that section 84(1) (c) of the Nationality, Immigration and Asylum Act 2002 appeared to enable the Appellant to rely on his Article 8 rights in an appeal but held that it was of little assistance to an appellant challenging a decision about documentation under the EEA Regulations. He returned to his point in paragraph 61 where he found the section 85(4) does allow an appellant in an EEA appeal to argue that he is entitled to a residence card on another basis under the Regulations.

20. However, his underlying reasoning was that relying on a distinct Article 8 right amounted to an additional ground and could not be pursued in the absence of a section 120 notice having been served. He noted that in paragraph 41 of Lamichhane v Secretary of State for the Home Department [2013] EWCA Civ 260 Stanley Burnton LJ had concluded that "an appellant on whom no section 120 notice has been served may not raise before the Tribunal any ground for the grant of leave to remain different from that which was the subject of the decision of the Secretary of State appealed against".

21. The President went on to noted that the Supreme Court in Patel v Secretary of State for the Home Department [2012] EWCA Civ 741 had not disproved this finding. He also noted that Arden LJ said in AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469 that "we are concerned with grounds other than human rights grounds or grounds for seeking asylum. It is accepted that they can be raised in any event". But distinguished this on the basis that the case concerned decisions to refuse leave to remain, not a decision under the EEA Regulations.

22. He also noted that in NA (Pakistan) v Secretary of State for the Home Department [2014] EWCA Civ 995 and Secretary of State for the Home Department v NA (Pakistan) [2015] EWCA Civ 140 the issues before the court and the primary basis on which the appeal was allowed in the Upper Tribunal, related to EU law.

23. At paragraph 70 the President noted that "an application made for a residence document as confirmation of an existing right and an application based on a claim that removal would be contrary to the United Kingdom's obligations under the Human Rights Convention are entirely different".

24. In her written and oral submission counsel for the Appellant asked the Tribunal not to follow Amirteymour as it was not a starred or country guidance decision. However, it is a decision by a Presidential Panel and, in any event, this argument has now been rendered irrelevant by the fact that Amirteymour has been followed by the Court of Appeal in TY (Sri Lanka). Jackson LJ found at paragraph 36 that:
"In the result therefore I reach a similar decision on the issues before us to the decision reached by the Upper Tribunal in Amirteymour v Secretary of State for the Home Department [2015] UKUT 00466 (IAC). The Upper Tribunal distinguished JM (Liberia) on a different basis from that which I have identified?Nevertheless in the end the Upper Tribunal has come to the same decision as myself".
25. Counsel for the Appellant also sought to rely on the principles in JM (Liberia) but in paragraph 34 of TY (Sri Lanka) Jackson LJ noted that "the crucial feature of JM was that the Secretary of State served a section one stop notice. That had two consequences. First, if M's appeal to the AIT failed the Secretary of State would be able to proceed to removal, without giving M any opportunity to raise human rights argument or to appeal on human rights grounds. Secondly, M was fully entitled to advance all his arguments under ECHR and the AIT was obliged to consider them". When reaching its decision the Court of Appeal relied on the earlier decision in Lamichhane, which is referred to above. In the current case, no section 120 notice had been filed.

26. In addition, counsel for the Appellant relied on the fact that section 86(2)(a) of the Nationality, Immigration and Asylum Act 2002 states that the Tribunal must determine any matter before it and that the Appellant is entitled to an appeal by virtue of Schedule 1 para 1 of the EEA Regulations under section 82(1) as the decision is treated as an immigration decision. But in paragraph 57 of Amirteymour the President found that "schedule 1 applies the relevant sections of the 2002 Act as if the decision were an immigration decision under section 82(1) of the 2002 Act; it does not, as we noted above, make it such a decision, nor do we discern either in the case law to which we have been referred or in the scheme of the legislation, any reason to take [the approach being argued for.]

27. In paragraph 27 of TY (Sri Lanka) Jackson LJ similarly found that " since there is no section 120 one stop notice, the appellant is confined to the subject matter of the original decision. That is the decision that the appellant does not fulfil the requirements of the EEA Regulations. That decision was unquestionably correct. However strong or weak the appellant's claims may be under the provisions of the Refugee Convention and ECHR, those provisions could not entitle the appellant to receive a residence card under the EEA Regulations.

28. Jackson LJ then added at paragraph 28 that "it is clear from the decision in Lamichhane that the Secretary of State is under not duty to serve a one stop notice under section 120. It is clear from Patel that the Secretary of State was under no duty to make a removal decision". He added at paragraph 35 that "the UK will only be in breach of [the ECHR] if in the future the appellant makes a ?human rights claim, which the Secretary of State and/or the tribunals incorrectly reject".

29. There was nothing in the arguments raised by the Appellant to identify any error in this approach by the President or the Court of Appeal. I also note that the case of Haque (s 86(2) - adjournment not required) Bangladesh [2011] UKUT 00481 (IAC) was premised on the fact that an immigration decision had been made in the first place.

DECISION
(1) First-tier Tribunal Judge Fitzgibbon did make arguable errors of law in his decision.
(2) The appeal should be remitted to a First-tier Tribunal Judge other than First-tier Tribunal Judge Fitzgibbon for a de novo hearing.

Date: 22 August 2016

Nadine Finch

Upper Tribunal Judge Finch