Another setback for EEA Family Members: Court of Appeal in Amirteymour v SSHD [2017] EWCA Civ 353 co

The much awaited Court of Appeal judgement on whether or not EEA family members could raise human rights grounds in an EEA appeal has finally arrived.

CA DECISION

As a matter of law, Human rights cannot be invoked as a ground in EEA Appeals.

WHEN CAN HUMAN RIGHTS BE INVOKED IN EEA APPEALS?

The CA answers this question definitively at paragraph [36]:

the only situation in which the Tribunal has jurisdiction to consider a general case based on Article 8 (not concerning a decision to remove the appellant) in an appeal pursuant to regulation 26(1) is where the Secretary of State or an immigration officer serves a notice under section 120 of the 2002 Act – sometimes called a “one stop notice”.

The CA leaves open a further possibility at [30]:

…if the Secretary of State did happen to address Article 8 arguments in her decision letter … it might be possible to say that the Secretary of State had waived the requirement for an application form to be completed in respect of her exercise of her residual discretion under the 1971 Act by reference to Article 8 and that she had then made two decisions, an “EEA decision” in relation to entitlements under the EEA Regulations and an “immigration decision” within the scope of section 82(1) of the 2002 Act, with distinct rights of appeal under regulation 26(1) and under section 82(1) respectively…

NEXT STEPS IF YOU ARE AN EEA APPLICANT

1. Has your EEA application been refused?

2. Is there any mention of a “section 120” in the refusal letter? You should seek legal advice even if you have not been granted appeal rights as mention of it might have generated a right of appeal on human rights grounds.

3. If there is no mention of a “section 120”, has Article 8 been addressed either directly or indirectly in the refusal letter? You should seek legal advice as an appeal may lie to FtT.


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