LO v The Secretary of State for the Home Department

The appellant is a national of Nigeria. He makes this application for the extension of time for lodging a Notice of Appeal to the Tribunal against a decision of the respondent on 5 November 2008 refusing him a residence card as confirmation that he is in a durable relationship with an EEA national. The Notice of Appeal is dated 15 January 2009.

The appellant's immigration history appears to be as follows. He came to notice in 2006 when he was attempting to leave the United Kingdom on a false passport. He was subject to criminal charges and was sentenced to eight months imprisonment. Following the completion of that sentence he left the UK for Nigeria in June 2007. In September 2007 he was intercepted again at Belfast Airport with a false British passport. He was again subject to criminal proceedings. On 17 September 2008 he was sentenced to four months imprisonment.

Meanwhile, on 7 September 2008, the Secretary of State had issued a decision to give directions for his removal as an illegal entrant. The appellant issued from within the United Kingdom a Notice of Appeal against that decision. That Notice was out of time. There was an application for extension of time on the basis that the appellant had not appreciated that there was any urgency and that he had not been able to contact a lawyer swiftly. On 3 November 2008 an Immigration Judge determined that the Notice of Appeal was invalid, not because it was out of time but because it was issued from within the United Kingdom: the decision against which the appellant appealed carried, in the circumstances of his case, no right of appeal from within the United Kingdom. That decision was made on 3 November 2008.

On 4 November 2008, the appellant made the present application, claiming a residence card on the basis of a durable relationship with an EEA national exercising treaty rights in the United Kingdom. It was refused, as I have said, on 5 November 2008. The reason for the refusal is that the appellant had not shown that he had been in a durable relationship lasting two years. That is also given as the reason why there is no in-country right of appeal, the respondent indicating that the lack of a relationship of that character prevented the appellant from having the benefit of reg 26 of the Immigration (European Economic Area) Regulations 2006. That view was immediately challenged by those acting on the appellant’s behalf. Judicial Review proceedings were issued on 13 November 2008. They have been stayed, awaiting this decision of the Tribunal.

The appellant's representatives sought to have the matter aired at an oral hearing. At their request it was added to a list of the Tribunal sitting in Belfast on 10 February 2009, but they were reminded of the provisions of r 10(6) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 which requires a decision such as this to be made without a hearing. The Tribunal was subsequently notified that the appellant's representatives no longer act for him.

Given the provisions of r 10(6), there were no proceedings on 10 February, and after that the file was unfortunately wrongly classified by the Tribunal’s administration. That is the reason for the delay in this decision being made.

The substantive question is whether the appellant has a right of appeal against the decision refusing him a residence card. There is no doubt that the provisions governing that issue are in the Immigration (European Economic Area) Regulations 2006. In reg 2(1), EEA decision is defined:

There are a number of other provisions to which I must make reference. First, the appellant's application was on the basis that he has a durable relationship with a named EEA national. That was a claim to be what the 2006 Regulations call an "extended family member". "Extended family member" is defined in reg 8:

The other relevant provisions are in the Immigration (Notices) Regulations 2003 (as amended). I do not need to set them out. They provide that a notice of a decision that is appealable must contain certain details including a statement of the right of appeal and how it can be exercised. The Notices Regulations specifically apply to EEA decisions as well as to other immigration decisions.

The appellant's claim to be an "extended family member" and to be entitled to a residence card was met by a refusal to give him a residence card. That was an EEA decision within the meaning of Regulation 2 of the 2006 Regulations. It therefore carried a right of appeal unless paragraphs (2) or (3) of reg 26 apply to it. Neither of those paragraphs do apply. The appellant is not himself an EEA national; and he does not claim to be a "family member" or relative. Quite apart from the terms of reg 8(1), the Regulations as a whole distinguish clearly between family members and extended family members. It therefore seems clear to me that the appellant had an in-country right of appeal against the refusal of a residence card.

I reach that conclusion with no enthusiasm at all. The effect of it is that any person threatened with removal, who applies for a residence card, even on an entirely spurious basis, so that refusal is inevitable, is entitled to an in-country right of appeal against that refusal and cannot be removed until the appeal has run its course. That cannot be intentional, but it does not appear to me that the regulations can be read in any other way.

As the appellant had an in-country right of appeal, the Notice of Decision, which fails to set out his right of appeal, was ineffective. As the Tribunal has held on a number of occasions, where a notice of decision does not comply with the Notices Regulations, time for appealing against the decision does not begin to run against the person who is the subject of the decision; but, if he does enter a Notice of Appeal, he may be taken to have waived the failure to advise him of a right of appeal, and may treat the Notice of Decision as valid for the purposes of constituting his appeal. It follows that the Notice of Appeal in the present case cannot be out of time, and should be regarded as constituting a valid notice of an appeal against the decision, which was on its face defective for failing to comply with the Notices Regulations.

The appellant accordingly has an appeal pending before the Tribunal.