Introduction

The case of Tatsanee Srisuwan Munday versus the Immigration Officer, Coquelles, decided by the Upper Tribunal (Immigration and Asylum Chamber) on February 4, 2019, addresses critical issues regarding the intersection of EU freedom of movement rights and human rights under the European Convention on Human Rights (ECHR). The appellant, a Thai national, sought entry to the United Kingdom based on her relationship with her British citizen spouse, Mr. Ian Munday. The core of her appeal hinged on whether her rights under Article 8 of the ECHR could be considered within an appeal against an EEA decision under the Immigration (EEA) Regulations 2016.

Summary of the Judgment

The Upper Tribunal upheld the decision of the First-tier Tribunal, which dismissed the appellant's appeal against an EEA decision refusing her entry to the UK. The primary ground for the refusal was that the appellant's spouse had not been exercising treaty rights in another EEA state immediately before their return to the UK, thereby disqualifying her from entry under the Surinder Singh principle. The appellant attempted to introduce a human rights argument based on Article 8 of the ECHR, asserting that the refusal breached her right to family life. However, the tribunal found that appeals against EEA decisions under the 2016 Regulations are confined to arguments based solely on EU law unless a Section 120 notice was served, which was not the case here. Consequently, the tribunal lacked jurisdiction to consider the Article 8 claim, leading to the dismissal of the appeal.

Analysis

Precedents Cited

The judgment references several key precedents that significantly influence the interpretation of appeal rights in immigration cases:

• Amirteymour v Secretary of State for the Home Department [2017] EWCA Civ 353: Established that without a Section 120 notice or a removal decision, an appellant cannot rely on human rights grounds such as Article 8 in an appeal against an EEA decision.
• SSHD v Banger (Case C-89/17) [2018] Imm AR 1205: Clarified that unmarried partners in durable relationships may be entitled to rely on the Surinder Singh principle, similar to married spouses.
• Baihinga [2018] UKUT 90 (IAC): Determined that an application for leave or entry clearance may constitute a human rights claim based on the totality of information supplied.
• Mahmud [2017] UKUT 488 (IAC): Defined what constitutes a "new matter" in the context of immigration appeals, emphasizing that it must be factually distinct from previously considered matters.
• Quiadoo (2018) UKUT 87 (IAC): Affirmed that "new matters" in appeals can only be considered with the Secretary of State's consent.

Legal Reasoning

The tribunal's legal reasoning centered on the statutory framework governing appeals against EEA decisions. Under the Immigration (EEA) Regulations 2016, specifically Regulation 36, appeals against EEA decisions are limited to arguments that the decision breaches EU law. The appellant's attempt to introduce an Article 8 human rights argument was outside the scope of these regulations because:

• There was no Section 120 notice served, which is a prerequisite for introducing human rights grounds in such appeals.
• The appellant did not challenge an additional human rights decision but solely the EEA decision regarding her admission based on her relationship.
• The concept of "new matter" as defined by Section 85 of the Nationality, Immigration and Asylum Act 2002 (NIA Act 2002) applies, but consent for such matters was not granted by the Secretary of State.

Furthermore, the tribunal held that even if the Article 8 claim were permissible, it would still be considered a "new matter," requiring specific consent to be entertained within the appeal proceedings, which was not provided.

Impact

This judgment reinforces the stringent limitations on introducing human rights arguments in appeals against EEA decisions unless specific procedural requirements, such as a Section 120 notice, are met. It clarifies that appeals under the Immigration (EEA) Regulations 2016 are confined to EU legal grounds. The decision emphasizes the importance of adhering to procedural prerequisites for broader grounds of appeal, potentially limiting the avenues available to appellants seeking to invoke human rights protections in similar contexts.

Complex Concepts Simplified

Surinder Singh Principle

The Surinder Singh principle originates from a landmark case where a British citizen employed in another EU member state returned to the UK with their non-EEA family members. The principle allows such family members to reside in the UK based on the family members' rights under EU freedom of movement, effectively treating them as family members of an EEA national for immigration purposes.

EEA Decision

An EEA decision refers to decisions made under the Immigration (EEA) Regulations, which govern the rights of EEA nationals and their family members to reside in the UK based on EU law provisions regarding free movement.

Article 8 of the ECHR

Article 8 protects the right to respect for private and family life. In immigration cases, appellants may argue that removal or refusal of entry infringes upon their Article 8 rights, particularly concerning their family life.

Section 120 Notice

A Section 120 notice is a procedural requirement where the Secretary of State or an immigration officer compels an individual to provide statements on various grounds concerning their reasons for entering or remaining in the UK, and reasons for not being removed. This notice is essential for introducing new grounds, such as human rights arguments, in appeals.

Conclusion

The Upper Tribunal's decision in Munday [2019] UKUT 91(IAC) underscores the rigid boundaries within which appeals against EEA immigration decisions must operate. Without procedural requisites like a Section 120 notice, appellants are constrained to EU law grounds, precluding the introduction of human rights arguments such as those based on Article 8 of the ECHR. This judgment not only reaffirms the supremacy of procedural adherence in immigration appeals but also delineates the limited scope of considerations available to appellants under the current regulatory framework. Consequently, individuals seeking to invoke human rights protections in similar immigration appeals must ensure compliance with procedural requirements to have their claims adequately considered.