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Appeals law: a “new matter” includes EU law arguments

Appeals law: a “new matter” includes EU law arguments

In Oksuzoglu (EEA appeal – “new matter”) [2018] UKUT 00385 (IAC), the appellant was a Ukrainian national and the sponsor was a British national. They had spent some seven months in Cyprus and on their return to the UK, the appellant applied for a residence card invoking the Surinder Singh principle.

The First-tier Tribunal found that the residence in Cyprus was not “genuine” for the purposes of the EEA Regulations 2016.

The appeal to the Upper Tribunal was based on two main grounds:

  1. The sponsor was a dual British/Cypriot national and therefore was an EEA national
  2. The judge had erred in applying the new 2016 Regulations rather than the 2006 Regulations

Dual nationality argument a “new matter”

On the first point, the first time the issue of the Cypriot nationality of the sponsor had been raised was in a “brief note” and an apparent passing reference in the submissions of the appellant’s representative. As a result, the Upper Tribunal found that this issue was factually and legally distinct from the Surinder Singh argument raised in the First-tier Tribunal and therefore it was a “new matter”. According to section 85(5) of the Nationality, Immigration and Asylum Act 2002, the Secretary of State is required to consent to any new matter being raised before the tribunal and there was no evidence that she had done so.

Transitional provisions do not apply after transition period

What seemed to belie the appellant’s submissions on the second point was that regulation 9 of the 2016 Regulations came into force on 1 February 2017 and meant that the judge was correct to decide the appeal heard in April 2017 by reference to the new 2016 Regulations. The transitional provisions were therefore not relevant and the Upper Tribunal was unimpressed by the submission to the contrary:

21. First, the submission overlooks the fact that these provisions are transitory, and only address outstanding applications for the period between 25 November 2016 and 1 February 2017. The appellant’s application was not decided during this period but on 26 April 2017. The transitory provisions are therefore not relevant and Mr Farhat erroneously placed reliance on these.

22. Second and in any event, even if I am wrong about this and the transitory provisions applied, no meaningful assistance can be derived from them… Even if the application is to be treated as having been made under the 2006 Regs, it is those Regs “as amended by paragraph 1 of this Schedule”… That amended regulation 9 in the 2006 Regs is the same as regulation 9 of the 2016 Regs.

The official headnote

(1) By virtue of schedule 2(1) of the Immigration (EEA) Regulations 2016 (‘the 2016 Regs’) a “new matter” in section 85(6) of the Nationality, Immigration and Asylum Act 2002 includes not only a ground of appeal of a kind listed in section 84 but also an EEA ground of appeal.

(2) The effect of the transitory and transitional provisions at schedules 5 and 6 of the 2016 Regs is as follows:

(a) All decisions made on or after 1 February 2017 are to be treated as having been made under the 2016 Regs, whatever the date of the application;

(b) Regulation 9 of the 2016 Regs applies (through the medium of the transitory provisions) to all decisions made on or after 25 November 2016 whatever the date of the application;

(c) In all other respects the Immigration (EEA) Regulations 2006 apply if (i) the application was made before 25 November 2016 and (ii) the decision was made before 1 February 2017.

Was the Surinder Singh principle applicable at all?

The principle which underlies Surinder Singh is that a Union citizen is entitled to leave his or her home state and goes to work in another member state, can live there with his or her spouse (of whatever nationality), and then return with that spouse to establish himself again in his home state. That home state has to grant his or her spouse leave to enter and reside in its territory. This is to ensure that the right of free movement is facilitated in practice, because otherwise a person might be reluctant to leave his or her own member state.

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So, at its very core, the principle only works if the EU citizen migrates to another member state which is not their home state. If the sponsor was a national of Cyprus, then clearly by travelling and working there and returning to the UK of which the sponsor was also a national, then the Surinder Singh principle could never take effect.

Thus, the Upper Tribunal expressed surprise that a straightforward application for a residence card was not made. The sponsor’s recently obtained Cypriot passport, together with evidence that he had been exercising Treaty rights in the UK, should have been “sufficient to enable the appellant to make a straightforward fresh application for a residence card. It is difficult to see why this was not done initially”.

Bilaal Shabbir

Bilaal is a Senior Accredited Paralegal at MBS Solicitors in Edinburgh. He is Head of the Court of Session Department and specialises in immigration law, family law, commercial dispute resolution and professional discipline. He was named as 'Paralegal of the Year' at the Scottish Legal Awards 2018.

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