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Article 8 not automatically engaged by a refusal under the EU settlement scheme
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In Dani (non-removal human rights submissions) Albania  UKUT 293 (IAC) the Upper Tribunal has said that an application made under the EU settlement scheme does not in itself amount to a human rights claim. This is yet another case where people trying to access their rights under the EU settlement scheme have been penalised owing to an inability to get married during the pandemic.
The Home Secretary rejected the appellant’s application for pre-settled status on the basis that the marriage took place after 31 December 2020 and the appellant had not been issued with a relevant document which meant he could not meet the definition of “durable partner”.
It was argued that the decision to refuse the appellant’s EU settlement scheme application breached his article 8 rights. There was also an attempt to broaden the ability to raise human rights arguments at appeal beyond the limitations at section 113(1) of the Nationality, Immigration and Asylum Act 2002 by arguing that a refusal of leave to remain was a breach of the European Convention on Human Rights.
The Upper Tribunal’s decision
These arguments were dismissed by the Upper Tribunal. The headnote says:
1. The mere refusal of leave to remain under the EUSS is not, without more, a “human rights claim” under section 113(1) of the 2002 Act.
2. Consequently, the “new matter” regime does not regulate the Tribunal’s consideration of non-removal human rights submissions.
3. But the Tribunal may only consider matters which it thinks are “relevant to the substance of the decision appealed against”.
4. Whether Article 8 is engaged by a decision to refuse an EUSS application is not “relevant to the substance of the decision appealed against”; the Tribunal cannot not consider it. The Tribunal does not enjoy a broad, unencumbered jurisdiction to consider non-removal human rights submissions at large.
5. In any event, Article 8 will not, without more, be engaged by a decision to refuse leave to remain under the EUSS.
6. Section 7(1)(b) of the Human Rights Act 1998 does not permit an appellant to advance a free-standing Article 8 claim in proceedings before the First-tier Tribunal.
The position therefore remains that where someone wants to raise human rights in an appeal against the refusal of an application made under the EU settlement scheme, if they have not previously raised human rights as part of the application then they will need consent from the Home Secretary to raise this as a “new matter” under regulation 9(5) of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. As was the case with Mr Celik and Mr Allaraj, Mr Dani will now presumably need to seek a grant of leave under Appendix FM in order to remain in the country with his wife.