TY (Sri Lanka) v The Secretary of State for the Home Department

This judgment is in three parts, namely:

This is an appeal against a decision of the Upper Tribunal that (i) the appellant has no derivative right to remain in the United Kingdom under the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”) and (ii) in the context of the appellant’s appeal under the EEA Regulations the Upper Tribunal had no jurisdiction to consider a claim for asylum or leave to remain on human rights grounds. The issue before this court is whether the Upper Tribunal was right to confine itself to the appellant’s claim under the EEA Regulations.

In this judgment I shall refer to a claim for asylum or a claim to remain in the UK on human rights grounds as “asylum”. I shall refer to the Nationality, Immigration and Asylum Act 2002 as “the 2002 Act”. Needless to say, most of the provisions of the 2002 Act which are relevant to this appeal have undergone substantial amendments since the events with which we are concerned. The relevant provisions, as they were set out at the time of the decisions under appeal, read 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),

….

(j)

a decision to make a deportation order under section 5(1) of that Act, and

(k)

refusal to revoke a deportation order under section 5(2) of that Act.

….

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;

….

(c)

that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights;

(d)

that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom;

(e)

that the decision is otherwise not in accordance with the law;

(f)

that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g)

that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.

(2)

In subsection (1)(d) “EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 (as it has effect from time to time).

….

85 Matters to be considered

(1)

An appeal under section 82(1) against a decision shall be treated by the Tribunal as including an appeal against any decision in respect of which the appellant has a right of appeal under section 82(1).

(2)

If an appellant under section 82(1) makes a statement under section 120, the Tribunal shall consider any matter raised in the statement which constitutes a ground of appeal of a kind listed in section 84 against the decision appealed against.

(3)

Subsection (2) applies to a statement made under section 120 whether the statement was made before or after the appeal was commenced.

….

120 Requirement to state additional grounds for application

(1)

This section applies to a person if—

(a)

he has made an application to enter or remain in the United Kingdom, or

(b)

an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2)

The Secretary of State or an immigration officer may by notice in writing require the person to state—

(a)

his reasons for wishing to enter or remain in the United Kingdom,

(b)

any grounds on which he should be permitted to enter or remain in the United Kingdom, and

(c)

any grounds on which he should not be removed from or required to leave the United Kingdom.

(3)

A statement under subsection (2) need not repeat reasons or grounds set out in—

(a)

the application mentioned in subsection (1)(a), or

(b)

an application to which the immigration decision mentioned in subsection (1)(b) relates.”

The EEA Regulations set out the rights of EEA nationals to reside in the UK. They also set out the conditions which must be satisfied to enable family members of EEA nationals to reside in the UK. The relevant provisions of the EEA Regulations for the purpose of this appeal are:

“General interpretation

2.—(1) In these Regulations—

….

“EEA decision” means a decision under these Regulations that concerns a person’s—

(a)

entitlement to be admitted to the United Kingdom;

(b)

entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or

(c)

removal from the United Kingdom;

….

Appeal rights

26.—(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision.

….

(4)

A person may not bring an appeal under these Regulations on a ground certified under paragraph (5) or rely on such a ground in an appeal brought under these Regulations.

(5)

The Secretary of State or an immigration officer may certify a ground for the purposes of paragraph (4) if it has been considered in a previous appeal brought under these Regulations or under section 82(1) of the 2002 Act.

(6)

Except where an appeal lies to the Commission, an appeal under these Regulations lies to the Asylum and Immigration Tribunal.

(7)

The provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these Regulations to the Asylum and Immigration Tribunal in accordance with that Schedule.

....

Effect on other legislation

30.

Schedule 2 (effect on other legislation) shall have effect.

….

SCHEDULE 1

APPEALS TO THE ASYLUM AND IMMIGRATION TRIBUNAL

The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the Asylum and Immigration Tribunal as if it were an appeal against an immigration decision under section 82(1) of that Act:

section 84(1), except paragraphs (a) and (f);

sections 85 to 87;

sections 103A to 103E;

section 105 and any regulations made under that section; and

section 106 and any rules made under that section.

....

SCHEDULE 2

EFFECT ON OTHER LEGISLATION

….

4 (8) Section 120 of the 2002 Act shall apply to a person if an EEA decision has been taken or may be taken in respect of him and, accordingly, the Secretary of State or an immigration officer may by notice require a statement from that person under subsection (2) of that section and that notice shall have effect for the purpose of section 96(2) of the 2002 Act.”

Having set out the relevant legislation, I must now turn to the facts.

The appellant is a Sri Lankan citizen, who was born in July 1976. By ethnicity he is a Tamil and he grew up in the Jaffna area. As is well known, a civil war began in Sri Lanka in 1983. In 1985 the appellant’s father fled to Germany and successfully claimed asylum. The appellant remained living in the north of Sri Lanka with his mother and siblings. There came a time when the appellant joined the Liberation Tigers of Tamil Eelam (“LTTE”).

In December 2001 the appellant fled from Sri Lanka. He arrived in the UK in June 2002 and claimed asylum. The basis of his claim was that he had been an active member of the LTTE before escaping from Sri Lanka. Therefore he was at risk of persecution at the hands of the Sri Lankan authorities. Also, as a deserter, he was at risk of reprisals from the LTTE. The Secretary of State refused the appellant’s claim for asylum.

An immigration adjudicator dismissed the appellant’s appeal on 23^rd April 2004. The adjudicator accepted that the appellant had been a member of the LTTE, but concluded that by April 2004 he would not be at risk of ill treatment either by the Sri Lankan authorities or the LTTE. Furthermore the appellant could re-locate to Colombo or Kandy without undue hardship. The appellant appealed to the Immigration Appeal Tribunal. The Immigration Appeal Tribunal dismissed his appeal on 5^th March 2006. On 7^th June 2006 the Court of Appeal refused permission to appeal against that decision.

While the appellant’s asylum claim was progressing through the system, his father obtained German nationality. In 2005 the father came to the UK. He exercised his right as an EEA national to reside in this country.

In 2008 the appellant decided to try his luck in Canada. He equipped himself with a false passport and set off for Gatwick Airport. He was arrested before boarding his flight and charged with possessing a false identity document. On 29^th September 2008 the appellant pleaded guilty to that offence and was sentenced to 12 months imprisonment.

On 29^th December 2008 the Secretary of State served a liability to deportation notice on the appellant. On 19^th May 2009 the Secretary of State served a deportation notice on the appellant.

On 22^nd June 2009 the appellant applied for asylum, alternatively an entitlement to remain in the UK on human rights grounds. This may have been a difficult claim to maintain, since the Sri Lankan civil war had by then come to an end. The Secretary of State rejected that claim. On 20^th November 2009 she signed another deportation order.

On 28^th June 2011 the appellant’s solicitors sent representations to the Secretary of State asserting that the appellant would be at risk of ill treatment in Sri Lanka because of his ethnicity and his past support for the LTTE; therefore the appellant should be granted asylum or a right to remain here on human rights grounds. The Secretary of State treated these representations as a request to revoke the deportation order. On 31^st August 2011 the Secretary of State refused that application. She also certified the appellant’s claims as clearly unfounded under section 94 of the 2002 Act. The effect of that certificate was that the appellant could only bring an appeal against that decision from outside the UK.

By August 2011 the appellant’s father, who was aged 69, had retired. He and the appellant’s mother were living in the UK. The father received a pension from the British and/or German Governments.

On 27^th February 2012 the appellant applied for a residence card as the dependent family member of EEA nationals residing in the UK. On 16^th May 2012 the Secretary of State refused that application.

The appellant appealed to the First-tier Tribunal against the Secretary of State’s decision, essentially on two grounds. These were, first, that he had an entitlement to remain here under the EEA Regulations. Secondly, he had an entitlement to asylum because the situation in Sri Lanka had deteriorated.

On 5^th September 2012 the First-tier Tribunal dismissed the appellant’s appeal on two grounds. First, as his counsel appeared to concede in argument, the appellant could not satisfy the requirements of the EEA Regulations. Secondly, the Secretary of State had not issued a one stop notice under section 120 of the 2002 Act. In those circumstances the appellant was not entitled to argue asylum grounds in an appeal against the Secretary of State’s refusal to issue a residence card under the EEA Regulations.

The appellant appealed to the Upper Tribunal. The Upper Tribunal in a decision dated 20^th February 2013 dismissed that appeal. The Upper Tribunal came to the same conclusions as the First-tier Tribunal on both issues.

The appellant is aggrieved by the decision of the Upper Tribunal. Accordingly he appeals to the Court of Appeal.

By a notice of appeal filed on 29^th April 2013 the appellant applied for permission to appeal on a variety of grounds. On 12^th July 2013 Maurice Kay LJ refused permission to appeal. The appellant renewed his application. The renewed application was stayed pending the decision of the Supreme Court in Patel v Secretary of State for the Home Department [2013] UKSC 72; [2014] AC 651, which was handed down on 20^th November 2013.

On 14^th April 2014 Longmore LJ granted permission to appeal on one ground only, namely that set out in paragraph 5 of the amended grounds of appeal. This was whether, despite Patel, the appellant was entitled to raise asylum and human rights grounds in his appeal under the EEA Regulations.

Let me begin by setting out the relevant legal principles. In Lamichhane v Secretary of State for the Home Department [2012] EWCA Civ 260; [2012] 1 WLR 3064 the appellant, L, obtained leave to enter as a student. He subsequently applied for indefinite leave to remain on the grounds of long residence. The Secretary of State refused that application, but did not serve a one stop notice under section 120 of the 2002 Act. L appealed against that decision. He also asked the First-tier Tribunal to consider an alternative claim, namely his entitlement to remain in the UK as a student. Thereafter the proceedings followed a torturous path, which I need not trace. Suffice it to say that the Court of Appeal held that section 120 of the 2002 Act conferred a discretionary power on the Secretary of State. The Secretary of State was under no duty to serve a one stop notice. The Court of Appeal went on to hold that, in the absence of a one stop notice, the applicant could not raise before the First-tier Tribunal any ground for grant of leave to remain different from that which was the subject of the Secretary of State’s decision. Accordingly the Court of Appeal dismissed L’s appeal.

In Patel three conjoined appeals went up to the Supreme Court. In the first of those three cases Mr and Mrs Patel came from India to the UK as holiday-makers. They subsequently applied for leave to remain on the basis of article 8 of the ECHR. The Secretary of State refused that application, but she did not at the same time make a removal direction. Nor did she issue a one stop notice. Mr and Mrs Patel appealed unsuccessfully to the First-tier Tribunal. On their further appeal to the Upper Tribunal Mr and Mrs Patel took a new point, namely that the Secretary of State had acted unlawfully in failing to make a removal decision at the same time as refusing leave to remain.

The Upper Tribunal rejected that argument and dismissed the appeal. Thereafter Mr and Mrs Patel appealed unsuccessfully, first to the Court of Appeal and then to the Supreme Court. The Supreme Court held that the Secretary of State had a discretion whether or not to make a removal decision. She was under no obligation to do so.

It is therefore clear on the basis of recent authority that when the Secretary of State refuses to grant or extend leave to remain, she has a choice whether or not to serve a one stop notice under section 120 and whether or not to make a removal decision.

Ms Shivani Jegarajah, who appears for the appellant, does not dispute those propositions. She submits, however, that by reason of Schedules 1 and 2 to the EEA Regulations the appellant had a right to advance his asylum and human rights claims in the context of his appeal against the EEA decision. I do not think that that is the effect of the statutory provisions. The appellant would only have such a right if the Secretary of State had served a one stop notice pursuant to section 120 of the 2002 Act and paragraph 4 (8) of Schedule 2 to the EEA Regulations.

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. 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.

It is clear from the decision in Lamichhane that the Secretary of State was under no 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.

The Secretary of State’s position was crystal clear. In her decision letter dated 16^th May 2012 she stated:

“Please note that your entitlement to remain in the UK has solely been assessed on the basis of the Immigration (European Economic Area) Regulations 2006. If you consider that you are entitled to remain in the UK on the basis of other Immigration legislation then please visit the UKBA website at www.ukba.homeoffice.gov.uk/settlement/findtherightform/ and submit an appropriate application for consideration.”

If it be the case that, despite earlier rejections, the appellant now has good grounds for making a fresh claim for asylum or to remain in the UK on human rights grounds, then he can make such a claim.

Ms Jegarajah took us through a number of judicial decisions on the relationship between the EEA Regulations and the general immigration legislation. These were, of course, most enlightening. None of those materials, however, affects the basic fact that the decision against which the appellant was appealing to the First-tier Tribunal and the Upper Tribunal was simply a decision that he was not entitled to a residence card. None of the statutory materials on which the appellant wishes to rely could assist the appellant’s claim to a residence card under the EEA Regulations.

When we pressed Ms Jegarajah, I hope courteously, on this point, she submitted that the answer was to be found inJM v Secretary of State for the Home Department [2006] EWCA Civ 1402; [2006] INLR 548. In that case M fled to the UK and claimed asylum. The Secretary of State rejected that claim and served a one stop notice under section 120 of the 2002 Act. She did not, however, make a removal decision. M appealed to the Asylum and Immigration Tribunal (“AIT”).On appeal M sought to rely upon an additional ground, namely ECHR Article 8, because his daughter and grandchild were living in the UK. The AIT refused to deal with the Article 8 claim, because M was not in imminent danger of removal. The tribunal took the view that section 84 (1) (g) of the 2002 Act did not apply because any future removal of M would not be “in consequence of” the immigration decision taken. The Court of Appeal allowed M’s appeal. Laws LJ, with whom Waller and Leveson LJJ agreed, held that the AIT had construed section 84 (1) (g) too narrowly.

Ms Jegarajah relies upon paragraph 16-18 of Laws LJ’s judgment. She submits that in the present case if, in the future, the appellant is removed that removal will be “in consequence of” the refusal to give him a residence card. Therefore the decision to refuse a residence card will have the effect of putting the UK in breach of the Refugee Convention and ECHR.

I have carefully considered this argument and re-read JM with Ms Jegarajah’s submissions in mind. I have come to the conclusion, however, that those submissions are flawed. The crucial feature of JM was that the Secretary of State served a section 120 one stop notice: see the last sentence of [23]. 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 arguments 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. The AIT failed to do so, because it misconstrued section 84 (1) (g) of the 2002 Act. Accordingly the Court of Appeal allowed M’s appeal. The present case differs from JM in a crucial respect, namely that here there was no one stop notice under section 120.

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.

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 in Amirteymour distinguished JM (Liberia) on a different basis from that which I have identified. See Amirteymour at[50]. Nevertheless in the end the Upper Tribunal has come to the same decision as myself. 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. Nor will I seek to plant yet more trees in the impenetrable jungle referred to by Lord Carnwath in the first paragraph of Patel. I reach my decision by the simple route set out in paragraphs 27 to 35 above.

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.

Let me now draw the threads together. In my view both the First-tier Tribunal and the Upper Tribunal reached the right decision for the right reasons. If Black and Briggs LJJ agree, this appeal will be dismissed.

I agree.

I also agree.