Amirteymour v The Secretary of State for the Home Department, Court of Appeal - Civil Division, May 10, 2017, [2017] EWCA Civ 353

Resolution Date:May 10, 2017
Issuing Organization:Civil Division
Actores:Amirteymour v The Secretary of State for the Home Department
 
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Case No: C5/2015/3681

Neutral Citation Number: [2017] EWCA Civ 353

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 10/05/2017

Before:

LORD JUSTICE BEATSON

and

LORD JUSTICE RYDER

SENIOR PRESIDENT OF TRIBUNALS

and

LORD JUSTICE SALES

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Between:

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Michael Biggs (instructed by Solacexis Solicitors) for the Appellant

Andrew Deakin (instructed by Government Legal Department) for the Respondent

Hearing date: 1 March 2017

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JudgmentLord Justice Sales:

  1. This appeal is concerned with the extent to which an individual appealing to the First-tier Tribunal (``FTT'') against a decision of the Secretary of State to refuse to issue a derivative residence card under the Immigration (European Economic Area) Regulations 2006 (``the EEA Regulations'') is entitled to introduce a distinct human rights claim for leave to remain in the United Kingdom in that appeal. In the decision under appeal to this court, the Upper Tribunal held that introduction of a new human rights claim in the proceedings before the FTT in this way is not permissible. If the individual wishes to make a claim for leave to remain based on human rights, he needs to make a relevant application to the Secretary of State to rely on those rights.

    Factual background

  2. The appellant, Nasrolah Amirteymour, is a citizen of the USA originally from Iran, born on 8 November 1956, who entered the United Kingdom on 26 April 2013 with entry clearance as a visitor for six months but who has overstayed and continued to live here for extended periods since then. He has a daughter, D, who is a British citizen born on 11 October 2005. The appellant originally maintained that he was the primary carer for D.

  3. On 14 August 2013 the appellant applied for a derivative residence card as confirmation of his right of residence in the UK under EU law as D's primary carer, relying on the judgment of the CJEU in Case C-34/09 Ruiz Zambrano [2011] ECR I-0000; [2012] QB 265 and the EEA Regulations. In support of his application he provided various documents, including a custody agreement regarding D between himself and D's mother, Shadi Mahsa, his ex-wife. He also sought to rely on Article 8 of the European Convention on Human Rights, but did not make the appropriate application under the relevant Immigration Rules contained in Appendix FM to rely on his Article 8 rights as reflected in the Rules.

  4. By a decision letter dated 21 February 2014 the appellant's application was refused by the Secretary of State, who said that he had not provided evidence as to why D's mother would be unable to care for D in the UK if he had to leave and that the custody agreement appeared to show that Ms Mahdi was D's primary carer. Therefore the appellant could not show that he fell within the principle established in Ruiz Zambrano and he did not satisfy the requirements for grant of a derivative residence card under regulations 15A and 18A of the EEA Regulations. The Secretary of State observed that he had not made an application under the relevant Immigration Rules in relation to private or family life. She pointed out ``that a decision not to issue a derivative rights residence card does not require you to leave the United Kingdom if you can otherwise demonstrate that you have a right to reside under the Regulations'', but also stated that since he seemed to have no alternative basis of stay in the UK he should make arrangements to leave. No removal directions were issued.

  5. The appellant appealed to the FTT. His grounds of appeal asserted, among other things, that the refusal of his application for a derivative residence card was ``not in accordance with the immigration rules'' and was incompatible with his Convention rights under Article 8, as well as maintaining that the decision ``breaches rights which he has as a member of an EEA national's family under Community Treaties relating to entry to or residence in the UK''. However, at the hearing of his appeal before the FTT on 11 November 2014, the appellant's counsel at that hearing indicated that he did not pursue his claim under the EEA Regulations because he accepted that he was not D's primary carer. Instead, the appellant sought to base his appeal solely upon his rights under Article 8. He relied upon Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 and submitted that it would be disproportionate to expect him to return to the USA to make an application for leave to enter under the Immigration Rules.

  6. The FTT dismissed his appeal. It found that the appellant had previously been able to maintain a satisfactory family life with D by frequent visits from the USA. He had not been responsible for D's upbringing since he divorced Ms Mahdi in 2012. Refusal of a residence card did not involve an interference with the appellant's family life with D of such severity as to engage Article 8. As regards Chikwamba, the appellant had not shown that he would be able to satisfy the requirements of the Immigration Rules for leave to enter on the basis of his family relationship with D, so it would not be disproportionate to expect him to leave.

  7. The appellant sought permission to appeal to the Upper Tribunal on the basis of his claim under Article 8. A different FTT judge granted permission to appeal, whilst also noting that the Upper Tribunal would need to consider whether the FTT should have considered Article 8 at all.

  8. The appellant's case was heard by the Upper Tribunal together with various other cases, since they each raised the same question relating to the right of appeal under regulation 26 of the EEA Regulations. This was whether a human rights challenge to removal could be brought in such an appeal when no notice under section 120 of the Nationality, Immigration and Asylum Act 2002 has been served and where no EEA decision to remove has been made. The Secretary of State's case was that an appellant may only pursue grounds of appeal which are related to the underlying decision under challenge; that the decision in the present case to refuse to issue the appellant with a derivative residence card did not require consideration of Article 8; and since the Secretary of State had chosen not to issue a section 120 notice, the appellant was not entitled to raise a distinct claim based on Article 8 in his appeal to the FTT.

  9. In the decision now under appeal to this court, the Upper Tribunal accepted the Secretary of State's submission. It held that where no notice has been served by the Secretary of State pursuant to section 120 of the 2002 Act and where no decision to remove has been made pursuant to the EEA Regulations, an appellant cannot in an appeal made pursuant to regulation 26 of the EEA Regulations bring a human rights challenge to removal. The Upper Tribunal also held that the decision of the FTT in the appellant's case did not involve the making of any material error of law and so upheld its decision to dismiss the appellant's appeal against the Secretary of State's decision to refuse to issue a derivative residence card. This was on the basis that the appellant abandoned his case based on the EEA Regulations at the outset of the hearing before the FTT. Any problem with the FTT's reasoning in relation to Article 8 could not be a material error, because the FTT had no jurisdiction to entertain the appellant's new case based on Article 8.

    The legal framework

  10. The appeal relates to the legislative provisions in force at the time of the hearing before the FTT. Changes were made to the appeal rights under the EEA Regulations which took effect on 6 April 2015, but transitional provisions stipulate that the changes have no effect in relation to an appeal against an EEA decision taken before that date.

  11. Section 82 of the Nationality, Immigration and Asylum Act 2002 provides in material part as follows:

    ``82 Right of appeal: general

    (1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.

    (2) In this Part ``immigration decision'' means--

    (a) refusal of leave to enter the United Kingdom,

    (b) refusal of entry clearance,

    (c) refusal of a certificate of entitlement under section 10 of this Act,

    (d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

    (e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,

    (f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,

    (g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),

    (h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal) ...

    ...

    (4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.''

  12. Section 84 of the 2002 Act provides in material part as follows;

    ``84 Grounds of appeal

    (1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds--

    (a) that the decision is not in accordance with immigration rules;

    (b) that the decision is unlawful by virtue of Article 20A of the Race Relations (Northern Ireland) Order 1997 or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1)...

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