Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/44579/2013

THE IMMIGRATION ACTS

Heard at The Royal Court of Justice, Belfast
Decision & Reasons Promulgated
On 2 August 2016
On 18 August 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

HERMANT KUMAR
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No attendance
For the Respondent: Mr M Matthews, Senior Presenting Officer

DECISION AND REASONS
1. Neither the appellant, nor his legal representatives, attended the hearing before the Upper Tribunal. I am satisfied that the notice of hearing was appropriately served. There has been no explanation for the non-attendance and no application for an adjournment. In all the circumstances of the case I am satisfied that it is appropriate and in the interests of justice to proceed to determine the appeal in the absence of the appellant.
2. This appeal has at its foundation a decision made by the Secretary of State for the Home Department ("SSHD") on 10 October 2013 refusing to provide the appellant with an EEA residence card.
3. The First-tier Tribunal (Judge of the First-tier Tribunal Fox) heard an appeal against the SSHD's decision on 23 December 2014 and dismissed it on all grounds in a decision promulgated on 3 February 2015. The pertinent features of such decision are as follows:
(i) It was conceded by the appellant's representatives that the appellant could not succeed under the 2006 Regulations and the Immigration Rules;
(ii) The First-tier Tribunal considered whether the SSHD's decision breached the appellant's Article 8 ECHR rights and concluded, for reasons given in paragraphs 11 to 22 of its decision, that it did not.
4. It is not contended that the SSHD served a notice on the appellant pursuant to section 120 of the Nationality, Immigration and Asylum Act 2002.
5. The appellant appeals to the Upper Tribunal with the permission of Deputy Upper Tribunal Judge saini, such permission being granted on 26 May 2015. It is not in dispute that the only ground of challenge brought before the Upper Tribunal is to the conclusion of the First-tier Tribunal in relation to Article 8 ECHR.
6. The hearing of this appeal was initially adjourned to await consideration by the Court of Appeal of an appeal against the decision of the Upper Tribunal in Amirteymour & Ors (EEA appeals; human rights) [2015] UKUT 00466, which the Upper Tribunal promulgated on 4 August 2015. Amirteymour was treated as having the status of a lead case by the Upper Tribunal and it concluded that, absent the service of a section 120 notice by the SSHD, an appellant could not rely upon human rights grounds before the Tribunal in order to seek to challenge a decision to refuse to issue an EEA residence card. The Court of Appeal have yet to consider the case of Amirteymour.
7. However, in a decision of 1 December 2015 the Court of Appeal considered materially the same issue in the case of TY (Sri Lanka) v SSHD [2015] EWCA Civ 1233.
8. In TY the SSHD refused an application for an EEA residence card as the dependant of a family member of an EEA national. The applicant appealed the decision to the First-tier Tribunal on two basis; the first relating to his entitlement to remain under the EEA Regulations and the second on Refugee Convention grounds. The SSHD had not issued a notice under section 120 of the 2002 Act to the applicant. The First-tier Tribunal dismissed the applicant's appeal on both grounds, concluding in relation to the second ground that the applicant was not entitled to pursue Refugee Convention grounds in the appeal. The Upper Tribunal confirmed the decision of the First-tier Tribunal and the appellant subsequently appealed the matter to the Court of Appeal.
9. By the time the matter come before the Court of Appeal the Upper Tribunal had promulgated its decision in Amirteymour. Jackson LJ, giving the judgment of the court, observed that the SSHD was not under a duty to serve a section 120 notice, that such a notice had not been served on the applicant and that there had been no removal decision made, or removal directions given, in relation to the applicant. Jackson LJ continued:
"27. Since there is no section 120 one stop notice, the appellant is confined to the subject matter of the original decision. That is a decision that the appellant does not fulfil the requirements of the EEA Regulations. ?However strong or weak the claims are under the Refugee Convention or ECHR, those provisions could not entitle the appellant to receive a residence card under the EEA Regulations. ?
35. It is impossible to say that the Secretary of State's decision to withhold a residence card (a decision which is correct under the EEA Regulations) will or could cause the UK to be in breach of the Refugee Convention or ECHR. The UK will only be in breach of those Conventions if in the future the appellant makes an asylum or human rights claim, which the Secretary of State and/or the Tribunals incorrectly reject.
36. In the result therefore I reach a similar decision on the issues before us to the decision reached by the Upper Tribunal in Amirteymour ... The Upper Tribunal in Amirteymour has analysed the statutory provisions and the authorities in formidable detail. I shall not seek to traverse all that material. ?
37. For completeness, I should add that in her skeleton argument Ms Jegarajah raised a number of points concerning the EU Charter. These could not affect the outcome of the appeal and, very sensibly, Ms Jegarajah did not press them in oral argument."
10. I am bound by the decision of the Court of Appeal in TY. In the instant case the SSHD made a decision to refuse to issue an EEA residence card. There was no notice served under section 120 of the 2002 Act on the appellant, and neither has there been a decision to remove the appellant.
11. In these circumstances the appellant's appeal should have been confined to the subject matter of the original decision i.e. the decision that the appellant does not fulfil the requirements of the EEA Regulations.
12. The First-tier Tribunal therefore erred in considering whether the decision of the SSHD led to a breach of Article 8 ECHR. That error is, however, immaterial given that the Tribunal went on to dismiss the appeal on that ground. As a consequence, I do not set aside the decision of the First-tier Tribunal and the appellant's appeal remains dismissed.

Notice of Decision
The appellant's appeal is dismissed. The First-tier Tribunal's decision does not contain an error of law capable of affecting the outcome of the appeal.

Signed:

Upper Tribunal Judge O'Connor
2 August 2016