The Court of Appeal upheld decisions of both the First Tier and Upper Tribunal that human rights cannot form part of an EEA appeal (Amirteymour v SSHD, EWCA Civ 353).
The applicant had applied for a residence card to confirm his derivative right to reside in the UK on the basis of his relationship with his daughter (a Zambrano application). The applicant sought to rely on human rights but did not make a distinct human rights application. The application for the residence card was refused but no removal directions were given.
The applicant appealed the refusal and again mentioned his human rights. A section 120 notice was served by the Secretary of State for the Home Department (“SSHD”) asking if there were any other grounds she should be aware of. No human rights arguments were explicitly made at that stage but they were again raised at the appeal. The judges throughout the appeal process found the human rights arguments could not form part of the EEA appeal.
The reasoning is that the right of appeal (under regulation 26(1)) is specifically a right of appeal against an EEA decision. The EEA appeal should focus on EEA law (note the ruling relates to cases where there are no removal directions in place). The regulation that gives the right of appeal does not create a general arena where arguments on immigration rules and human rights can be raised.
Instead of an applicant being able to include human rights arguments as part of the EEA appeal they need to make a separate human rights application. The ruling means that there could then be two appeals, one for EEA law and one for human rights issues (except where prior notice is given to the SSHD through the s.120 process).
The decision is all the more surprising due to UK case law on the need to recognise human rights claims even where they are not explicitly made (albeit relating to the Immigration Rules rather than to EEA law). As the applicant was applying based on his relationship with his daughter, it is no jump to see that their rights to family and private life (Article 8 EHCR) are relevant.
Of course the difficulty with this for applicants looking to reside in the UK is that it is becoming more complex and it is the outcome which is important to them, not which route of law it takes to get there. They will now face bearing the legal costs of preparing for two applications and possibly two appeals, covering many of the same issues but under different legal headings, rather than one all encompassing application and appeal. The additional applications and appeals will also lead to increased costs for the public purse.
Individuals will need to consider whether a separate human rights application should be made under the Immigration Rules in addition to their EEA application. If not, in the case of a refusal it is particularly important to explicitly make human rights arguments where a section 120 notice is served.
For those making a human rights application as well as an EEA application there may be wider implications and we strongly advise applicants where this may apply to seek legal advice.