Court Rules No Human Rights Grounds Are Applicable In EEA Removal Appeals

eea question mark EU

At the Conservative Party Conference on the 6th October, Home Secretary, Teresa May, used her speech to launch a blistering attack on the impact of immigrants on British society.  In her address, she said Immigration makes society less cohesive and it is driving down wages and taking away jobs from British people.

The speech was widely condemned by both the business community and the British media the following morning.  As one paper pointed out, the Home Secretary’s statement “And we know that for people in low-paid jobs, wages are forced down even further while some people are forced out of work altogether.”, was refuted by her own officials earlier this year, when a review was carried out on the impact of Immigration on the labour market. 

The study showed, “There is relatively little evidence that migration has caused statistically significant displacement of UK natives from the labour market in periods when the economy is strong.”

Many commentators have dismissed Ms May’s speech as simply a cynical attempt to garner support for her bid in the Conservative Party’s leadership election; however, although Prime Minister, David Cameron did not use such strong language, he made it clear he backs his fellow Minister’s views on Immigration and defended her speech.

This, along with the European Court of Justice ruling to back Britain on welfare cuts pertaining to EU migrants, on the same day as the Home Secretary’s speech, clearly indicates that regardless of whether or not Britain remains in the European Union, the UK Government plans to put the squeeze on the free movement principle as it relates to EEA migration to the UK, as much as possible.

EEA Appeals – The Basics

Before discussing the recent decision of Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC), the case which has stated that human rights grounds cannot be argued in EEA appeals, it is helpful to briefly state the law as to EEA appeals to provide some background to the decision.

Under the Citizens’ Directive (Directive 2004/38/EC), EEA nationals and their family members who assert an EU right of entry or residence may be excluded or expelled on the grounds of public policy, public security or public health, non-qualification with the conditions for obtaining or retaining a right of residence, and in circumstances of abuse of rights or fraud, in accordance with the relevant principles laid down in the Directive. 

Article 31 of the Citizen’s Directive provides that an EEA national or their family member can apply for scrutiny of the legality and the facts of such decisions. This is transposed into the Immigration (European Economic Area) Regulations 2006 (the ‘Regulations’).

Regulation 26 of the Regulations, states that a person may appeal to the First-tier Tribunal from an ‘EEA decision’.

EEA decision’ is defined in Regulation 2 to mean a decision under the Regulations that concerns:

  • An individual’s entitlement to be admitted to the United Kingdom
  • a person’s entitlement to be issued with, or to have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying Permanent Residence or Permanent Residence card
  • a person’s removal from the UK, or
  • the cancellation, pursuant to Regulation 20A, of a person’s right to reside in the UK

In order to show entitlement to bring an appeal, certain evidence specified under the Regulations must be produced:

 

  1. a person claiming to be an EEA national must produce a valid national identity card or passport issued by an EEA state
  2. a person claiming to be in a durable relationship with an EEA national must produce a passport and either an EEA Family permit or sufficient evidence to satisfy the Home Office that they are in a relationship with that EEA national—note that, for the purposes of showing entitlement to bring an appeal, this evidence does not have to show that the relationship is durable
  3. a person claiming to be the family member or relative of an EEA national must produce a passport and either:

a)     an EEA Family permit

b)     an EEA state residence card issued by any other EEA state (except Switzerland), or

c)     proof that they are (or in the case of those claiming to be a family member who have retained the right of residence, were) the family member or, if relevant, relative of an EEA national

  1. a person claiming to have a derivative right of entry or residence must produce a valid national identity card issued by an EEA state or a passport and proof of the relevant relationship under Regulations 15A(2)–(5)

 

Regulation 29AA permits a person, who has instigated an appeal but has been removed from the UK on this basis prior to the appeal being heard, to apply be temporarily admitted to the UK for the purposes of attending the appeal hearing and making submissions in person.  If you are admitted back into the UK via Regulation 29AA, you may be held in detention or subject to conditions set out by the Home Office, whilst your appeal is being considered.

If there is no right of appeal, judicial review may be an option worth pursuing, click here for further information.

The Decision of Amirteymour and others (EEA appeals; human rights) 

The Upper Tribunal recently released an important decision which discussed whether human rights grounds can be argued in EEA rights of residence appeals.

The case concerned four individuals who had all been refused applications for EEA resident cards as a primary care giver of a British Citizen child or EEA nationals and their dependents.  One of the appellants, a Mother and child, both citizens of Gambia, had their resident cards that confirmed their right of residence as the spouse and dependant of an EEA national who had been exercising Treaty Rights revoked.  The Respondent then refused to issue them with residence documents confirming their retained rights of residence as the former spouse and child of an EEA national who had been exercising Treaty Rights in the UK. 

In the refusal letters sent by the Respondents, the Appellants were not expressly asked to leave the country.

The most common ground to challenge a decision for removal is under Article 8 of the European Convention on human rights.  This Article states:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

However, the decision of Amirteymour and others (EEA appeals; human rights) states in the official headnote:

Where no notice under section 120 of the 2002 Act has been served and where no EEA decision to remove has been made, an appellant cannot bring a human rights challenge to removal in an appeal under the EEA Regulations. Neither the factual matrix nor the reasoning in JM (Liberia) [2006] EWCA Civ 1402 has any application to appeals of this nature.”

Ultimately, The Home Office and Upper Tribunal were agreed 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.

However, EEA appeals and human rights grounds interlink considerably and it is extremely difficult to separate them.  For example, under Section 55 of the Borders, Citizenship and Immigration Act 2009 the Home Office has a duty to consider the best interest of children in every one of its cases.  Therefore, a decision or refuse a resident card which would result in the break-up of a family unit surely must engage the principles of Article 8 with respect to the right to family life.

 

The Current Law Regarding EEA Appeals and human rights

Although the decision in Amirteymour and others (EEA appeals; human rights)  is likely to be overturned on appeal, at the moment it is the authority on the matter of EEA appeals and human rights.  However, clients should be aware that by organising a well-prepared EEA appeal that also raising human rights grounds, a great deal of money and time can be saved in the long run should a subsequent stand alone Human Right application be made at a later date.

How OTS Solicitors Can Help

At OTS Solicitors, we have a wealth of experience and expertise in managing EEA appeals.  You can contact our London office on 0207 936 9960 to make an appointment with one of our Immigration team who will listen to the facts of your case and offer down to earth advice accordingly.

If you have any comments to make on this article please feel free to add them into the comments section below.

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