The president of the Upper Tribunal recently decided in the case of Amirteymour and others (EEA appeals; human rights)  UKUT 466 (IAC): that ‘where no notice under section 120 of the 2002 Act has been served and where no EEA’ (European Economic Area) removal direction has been served…’an appellant cannot bring a Human Rights challenge to removal in an appeal under the EEA Regulations.’
The case concerned four appeals all of which raised the same question relating to the right of appeal under regulation 26 of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”). The question was: can a Human Rights challenge to removal be brought in an appeal where no EEA decision to remove had been made and no notice under section 120 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) had been served. Section 120 essentially provides a route for further reasons to be submitted to the Home Office when a person has made an application to enter or remain in the United Kingdom. Usually the Home Office may request the applicant to state in writing his reasons for wishing to enter or remain in the UK and any reasons why he/she should not be removed.
Summary of the facts
The Appeal concerned four separate appellants all of whom had received a refusal of an application for an EEA residence card as confirmation of a right of residence as a primary carer of a British Citizen children or EEA nationals and their dependents.
One of the four cases involved the revocation of EEA residence cards whereby the EEA residence cards confirmed the appellants’ right of residence as the spouse and dependant of an EEA national. The appellants were refused residence documents under their application for ‘retained rights of residence’ as the former spouse and child of an EEA national who had been exercising Treaty Rights in the UK.
The Home Office refusal letters
The refusal letters in the individual cases had the following points in common:
- they did not expressly tell the appellants to leave, but did advise they might be subject to removal; and
- that the Immigration Rules now set out requirements for those seeking leave to enter or remain on the basis of their private or family life; and
- that anyone wishing to rely on family or private life in the UK under Article 8 of the Human Rights Convention must make an application using the relevant form and by payment of the relevant fees.
- There was also an express reminder that the application had been assessed solely on the basis of the EEA Regulations in light of the EEA applications submitted.
Home Office’s case
The respondent distinguished the case of JM (Liberia) and submitted that ‘unlike the appellants in JM (Liberia)’; there would be no adverse consequences to the claimants not being able to raise article 8 grounds. Nothing had prevented them from making an application under the Immigration Rules at any stage. That requirement to submit an article 8 application could not be said to be a disproportionate expectation. Paragraph GEN 1.9 of Appendix FM of the Immigration Rules was raised to remind the immigration tribunal that the immigration rules did not permit Human Rights claims to be raised in an appeal under the EEA Regulations
Immigration Tribunal’s decision
In considering the matter the Upper Tribunal agreed with the Home Office and distinguished Amirteymour from JM (Liberia) on the facts. It is easy to see how the two cases can be distinguished most significantly there were no removal directions in Amirteymour. It could not be argued without removal directions that Article 8 would be engaged let alone breached.
The Home Office and immigration Tribunal were therefore in agreement that human rights must be separated from EEA and other grounds of appeal unless the correct immigration applications have been submitted before the matter reaches appeal. This can be difficult given the extent to which the EEA and human rights issues may interlink.
The decision concluded that an application for derived rights of residence has to be viewed as simply that alone and not as an application which also demands a consideration of human rights.
This is not to be confused with the Immigration Act 2014, where immigration appeals may bring with them implicit human rights consideration. The Home Office and the immigration tribunal do consider human rights where a visa application involves a child or spouse under the Appendix FM immigration rules.
How this affects EEA nationals and the right to raise human rights grounds
Those with current EEA appeals may, depending on their circumstances need to make a further application based on their human rights. This is both practical for the Home Office and the immigration tribunals as it allows time for appellants to meet the requirements of the Immigration Health Surcharge whilst at the same time allowing time for the Home Office to process and review the applications. At the same time it prevents the immigration tribunals from being bombarded with last minute evidence and late completion of directions on the grounds of article 8.
The Home Office position on this case can now afford the jurisdiction more time and prevents a rushed review of important applications brought before the Tribunal and is in line with the recent case of R (On the Application Of Akram & Anor) v Secretary of State for the Home Department  EWHC 1359 (Admin))where the Court ‘demonstrated its intention to take a proactive approach to…cases in order to enforce standards and to ensure that the time of the Court (not to say public and private funding of such litigation) is not wasted’ and therefore cases are dealt with efficiently in the long term.
It is important that parties continue to work together to produce a more efficient jurisdiction and the immigration tribunal and Home Office have demonstrated this in their agreement in respect of this case.
Making the correct immigration and/or EEA application from the outset
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