In Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) and Batool and others (other family members: EU exit) [2022] UKUT 00219 (IAC) the Upper Tribunal considered to what extent human rights arguments can be considered in EU Settled Status appeal.

In short: they can be considered where the Home Office consent to this.

Grounds of appeal

The grounds of appeal in an EU Settled Status appeal are provided for in the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

Regulation 8 contains two potential grounds of appeal:

1. That the decision is breaches a right the appellant has under the Withdrawal Agreement.
2. That the decision is not in accordance with the immigration rules.

Regulation 9(4) provides that the Tribunal “may also consider any matter which it thinks relevant to the substance of the decision appealed against, including a matter arising after the date of the decision.”

This, the Upper Tribunal has confirmed, includes human rights grounds.

Home Office consent

However, regulation 9(4) is subject to regulation 9(5) which provides that the Tribunal cannot consider a “new matter” without the Home Office’s consent.

As highlighted in Celik:

“Given what we have said about the nature of the respondent’s decision-making under Appendix EU, the raising of a human rights claim will always be a” new matter”, except where, for some reason, the respondent has already considered it.” [96] Celik

The same point is made in Batool at paragraph 93. In Batool it was argued that human rights were considered as part of the Family Permit application made by the appellants. This was rejected by the Tribunal:

“In order to succeed in an application for entry clearance under Appendix EU(FP), an applicant must meet the specific requirements of those rules. Since neither Appendix EU nor Appendix EU(FP) is intended to, and does not, give effect to this country’s obligations under Article 8 ECHR, consideration of Article 8 forms no part of the decision-making process in relation to such an application. Regardless of the strength of any Article 8 claim, leave could not be granted under those provisions unless the requirements of the relevant rules were satisfied.” [80] Batool

Thus, the application was not a human rights claim and the decision was not a refusal of a human rights claim. Consent was therefore required.

In Mr Celik’s case the Home Office did not consent to human rights being considered. In Mr Batool’s case, they did. However, the Upper Tribunal found that the judge below had been entitled to conclude that the decision was compatible with article 8.

Relevance of the EU charter

In Batool it was argued that – because there is a right to private and family life in article 7 of the EU Charter of Fundamental Rights – the Tribunal was obliged to consider this.

This was rejected by the Tribunal due to section 5(4) of the European Union (Withdrawal) Act 2018 which states that the Charter is not part of domestic law after 31 December 2020. The Charter had “no bearing” on the appeals (see [86] of Batool).

The Charter is referred to in the recitals to the Withdrawal Agreement:

“That, however, provides no basis at all upon which to argue, as the appellants appear to do, that the EU Charter has a direct bearing on Articles 10/18, to the point where a First-tier Tribunal Judge is compelled to engage with the Charter in an appeal under the 2020 Appeal Regulations, irrespective of the restrictions on grounds and matters contained in regulations 8 and 9.” [89] Batool

As such, the Charter did not enable human rights to be considered without Home Office consent.

Retained EU law

Finally, it was argued that retained EU law required consideration of article 8.

This was rejected as, even before Brexit, human rights could not be considered in appeals under the EEA Regulations unless removal was contemplated:

“…the judgment of the Court of Appeal in Amirteymour v SSHD [2017] EWCA Civ 353… makes the appellants’ case untenable. There, the Court held that human rights could not constitute a ground of appeal under the 2006 Regulations (the predecessors of the 2016 Regulations), unless it had featured in a response to a section 120 notice” [91] Batool

All of this meant that consent is required:

“The position, therefore, is that, unless there has been a section 120 response raising human rights, the First-tier Tribunal may entertain a submission that leave should be granted in order to avoid a breach of section 6 of the Human Rights Act 1998, only with the consent of the Secretary of State if this would involve consideration of a “new matter”.” [92] Batool.

In practice, the Home Office are unlikely to serve a section 120 notice. Even if they do, and the appellant responds raising human rights grounds, the Home Office are unlikely to engage with this unless a paid application is made. Their “Rights of appeal” guidance confirms, at page 21, that:

“Where a person makes a statement in response to a section 120 notice they may be told that In order to have the matter considered they must make an application on a specified form or follow a specified process”.

A paid application is therefore likely to be required.

Separate application required

This was highlighted in Celik. The Upper Tribunal noted that appellants who want to rely on article 8 “can and should make the relevant application, accompanied by the appropriate fee” (at [98]).

Applicants who have been unsuccessful under the EU Settled Status scheme are therefore left to start all over again: going to the expense of making a paid human rights application and appealing any refusal.