[2023] UKUT 00293 (IAC)

The mere fact that the appellant’s non-removal human rights submissions were incapable of amounting to a ground of appeal under section 84 is not, contrary to Mr Toal’s submissions, a jurisdictional point in his favour.

The permitted grounds of appeal under the 2020 Regulations define and thereby limit the tribunal’s jurisdiction. There is no general human rights-based ground of appeal under the 2020 Regulations, and there is no basis to adopt an expansionist approach to the tribunal’s jurisdiction (and see below in relation to section 7(1)(b) of the Human Rights Act). It follows that the non-applicability of the “new matter” regime to non-removal human rights claims does not, contrary to Mr Toal’s submissions, permit such broader human rights claims to be entertained by the tribunal.

The new matter regime is the means by which an exception may be made to the jurisdictional constraints that would otherwise apply to the tribunal’s consideration of issues before it. Where the criteria for a new matter are not capable of being met, that does not permit the tribunal to consider other free-standing matters at large and without the requirement for the Secretary of State’s consent. It means that the tribunal simply does not have the jurisdiction to consider such matters in the first place, for there is no permitted ground of appeal pursuant to which such submissions may be advanced.

This is underlined by the regulation of the role of the tribunal upon hearing an appeal. Regulation 9(4) provides that the tribunal “may also consider any matter which it thinks relevant to the substance of the decision appealed against…” The effect of regulation 9(4) is to anchor the matters which may legitimately be considered by tribunal in an appeal to those which are “relevant to the substance of the decision appealed against”.

In the case of an EUSS appeal, whether Article 8 is engaged by the Secretary of State’s underlying refusal decision is not a matter which is relevant to the substance of the decision, for the following reasons.

First, it was not the appellant’s case in his application to the Secretary of State that he was entitled to leave to remain on Article 8 grounds.

Secondly, even if the appellant had maintained or implied to the Secretary of State that he was entitled to Article 8-based leave in the course of making an EUSS application, his primary application to the Secretary of State was for leave under the EUSS. His EUSS application would have been framed by reference to EUSS criteria, which are based on the EU Withdrawal Agreement, not the ECHR. Neither the EUSS nor the EU Withdrawal Agreement feature criteria commensurate with the general Article 8-based submissions the appellant sought to rely upon before the judge. Appendix EU of the Immigration Rules, which establishes the EUSS, has not been framed to give effect to the UK’s ECHR obligations. The ECHR is, of course, an entirely different international treaty from the EU Withdrawal Agreement. The Secretary of State has made quite separate provision under the Immigration Rules, for example in Appendix FM, to give effect to the UK’s Article 8 ECHR obligations. Mr Toal’s attempt to achieve cross-pollination between two entirely separate regimes is misconceived.

Thirdly, nothing in the Secretary of State’s EUSS decision purported to engage with any matters relating to Article 8 ECHR, or the Immigration Rules which seek to give effect to the UK’s Article 8 ECHR obligations.

Fourthly, since the appellant’s case is expressly premised on the footing that he did not make an Article 8 claim based on his prospective removal, there was no sense in which the Secretary of State’s decision to refuse EUSS leave engaged his rights under Article 8(1) ECHR.

To the extent that an EUSS decision does not provide an applicant with their hoped-for means of regularising their otherwise unlawful residence with the consequence that the individual (like this appellant) remains exposed to the future possibility of enforced removal, the prospect of such enforced removal is, at best, an indirect consequence of the EUSS decision. It is not a matter relating to the “substance” of the decision.

At para. 14 of his skeleton argument, Mr Toal relied upon R (oao Balajigari) v Secretary of State for the Home Department [2019] EWCA Civ 673 at para. 91, as authority for the proposition that the refusal of leave to remain, as opposed to a decision to remove a person or require him or her to leave, may engage and be incompatible with their ECHR rights.

We reject that submission. In Balajigari, the applicants held leave to remain prior to the submission of their in-time applications to the Secretary of State, such leave having been extended by section 3C of the Immigration Act 1971 while the applications remained under consideration following the expiry of their leave. The functional effect of the refusal decisions in those cases was to expose the unsuccessful applicants to a requirement to leave the UK, or to render them liable to removal, in circumstances where they were not previously so required or exposed. The refusal decisions included an “Enforcement Warning”, requiring the applicants to leave or regularise their stay through other means. See para. 80, which summarises the submissions the Court of Appeal accepted at para. 91.

In contrast to the position of the parties in Balajigari, this appellant has never held leave. The EUSS refusal decision merely left him in the same position he was in prior to the submission of the EUSS application. The decision carried no enforcement warning. While the decision conferred no immigration benefit upon the appellant, it did not expose him to any immigration jeopardy to which he was not already subject. Its effect was not to render him liable to removal, for he was already unlawfully resident and so liable upon submitting the application. His unlawful residence was not caused by the EUSS decision, it was simply not remedied by it. Balajigari is of no assistance to the appellant; on the contrary, it confirms the nexus between prospective removal and the engagement of Article 8.

Pausing here, we observe that in some circumstances a decision to refuse to grant a particular category of leave may engage Article 8 even where removal is not in issue. The paradigm example is a decision to confer only restricted leave on an applicant, rather than a more beneficial form of leave. See, for example, MS (India) and MT (Tunisia) v Secretary of State for the Home Department [2017] EWCA Civ 1190 at para. 124, R (oao MBT) v Secretary of State for the Home Department (restricted leave; ILR; disability discrimination) [2019] UKUT 414 (IAC), headnote (1), para. 75. Challenges to such decisions are usually brought by means of an application for judicial review, precisely because the statutory jurisdiction of the First-tier Tribunal on a human rights appeal under the 2002 Act is engaged by reference to the prospective removal of an appellant, not the claimed Article 8 implications of a lesser form of leave (see section 113(1)).

TY (Sri Lanka) v Secretary of State for the Home Department [2015] EWCA Civ 1233 concerned whether a decision to refuse a residence card under the Immigration (European Economic Area) Regulations 2006 (which preceded the 2016 Regulations) to a failed asylum seeker with no lawful basis of residence engaged Article 8 ECHR. Jackson LJ said, at para. 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.”

By analogy, the EUSS decision at the heart of these proceedings does not engage Article 8 for the same reasons.

Fifthly, the appellant enjoyed (and continues to enjoy) the ability to make an in-country human rights claim to the Secretary of State based on his hypothetical removal.

Mr Toal sought to draw assistance from Schedule 2 to the 2020 Regulations. Pursuant to regulation 11, Schedule 2 provides that certain specified provisions of the 2002 Act apply to appeals under the 2020 Regulations. The provisions include section 72 (concerning the construction of Article 33(2) of the Refugee Convention), which, Mr Toal submitted, demonstrates that a broad approach should be taken to the determination of whether a matter is “relevant to the substance of the decision appealed against”. If the 2020 Regulations envisage that questions of expulsion and refoulement under Article 33(2) of the Refugee Convention may be explored in an appeal against an EUSS decision, it follows that a correspondingly broad view must be taken of “relevance” under regulation 9(4), he submitted.

We disagree. Section 72 of the 2002 Act will plainly be capable of being engaged where an appellant, either in response to a section 120 notice or as a new matter with the consent of the Secretary of State, relies on a ground of appeal mentioned in section 84(1)(a) or (3)(a). Paragraph 3(2) of Schedule 2 modifies the application of section 72 in EUSS appeals expressly to cater for situations where an individual has relied on Refugee Convention-based grounds in a response to a section 120 notice, thereby underlining the Regulations’ expectation that an appellant’s reliance on such grounds of appeal will be pursuant to the specific gateways envisaged by the Regulations, not by reference to an overly broad reading of what amounts to “relevant to the substance of the decision appealed against”.

Drawing this analysis together, Mr Toal is correct in one sense. An Article 8 argument not involving prospective removal is not a “human rights claim” as defined by section 113(1) of the 2002 Act and is therefore not a ground of appeal of a kind listed in section 84 of the 2002 Act. A non-removal Article 8 claim is not, therefore, capable of being a “new matter” and so is not subject to the consent of the Secretary of State to be relied upon by an appellant. But a purported Article 8 claim not framed by reference to the prospective removal of the appellant in these proceedings is, in reality, no Article 8 claim at all. It will not be “relevant to the substance of the decision appealed against”, with the result that the First-tier Tribunal would lack the jurisdiction to consider it under the 2020 Regulations and the 2002 Act in any event.

We therefore reject ground 1.