The Upper Tribunal has issued the much awaited case addressing whether human rights grounds can be argued in an EU rights of residence appeal. The determination is Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC) and the official headnote reads:

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.

The decision is not terribly surprising given that the immigration tribunal has always been more of a shirker than a worker when it comes to jurisdiction. An added sense of deja vu is unavoidable given that Mr Ockelton was previously held to be wrong on a similar legal issue in the Court of Appeal judgment in JM (Liberia). This new determination might be considered as an example of the tribunal reverting to type. Mr Ockelton sits on the panel for Amirteymour, as does President McCloskey, but it is Upper Tribunal Judge Rintoul who writes the determination.

There are a number of criticisms of the decision that can be made. My apologies to casual or lay readers, I’m assuming quite a lot of knowledge in what follows.

1The Charter of Fundamental Rights gets the barest of mentions despite the fact that Article 7 is in identical terms to Article 8 of the European Convention on Human Rights. Whether or not a formal human rights ground of appeal at section 84 (pre-2014 Act version) is incorporated into EEA appeals by Schedule 1 of the Immigration (EEA) Regulations 2006 should therefore be a moot point.

2As with Bilal Ahmed (see Elspeth Guild’s criticism of that case here) paragraph 50 of Amirteymour is a classic example of what might kindly be described as telelogical reasoning. The less charitable might say that it assumes the Home Office case is correct as a starting point. It also confuses the issue by stating that the appellants did not have “leave”. That was actually their own case; instead, they had for some time already had an EU law right of residence. The problem is that the tribunal assumes from the outset that the appellants are unlawfully resident, which assumes that the Home Office is right and the appellants are wrong. That is the very question which is supposed to be decided on appeal.

3The entire determination has an air of unreality about it, as was the case with the tribunal’s decision in JM (Liberia) before it was overturned by the Court of Appeal. The idea that a refusal of EEA residence documentation is unconnected to the removal of the person and their family and therefore that human rights are irrelevant is a bizarrely impractical notion as unconnected to the real lives of those affected as is the personal and professional experience of most of the judges. For an example of the Court of Appeal taking a different view, albeit without hearing argument on the issue, see Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736 at paragraph 71 onwards. For an example of the Court of Justice of the European Union taking a different view see Dereci Case C-256/11 at paragraphs 72 and 73:

72      Thus, in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.

73      All the Member States are, after all, parties to the ECHR which enshrines the right to respect for private and family life in Article 8.

In Dereci all the claimants had had residence permit applications refused and four of the five claimants had also been subject to removal decisions. The court does not seem to draw any artificial distinctions between refusal of residence and a decision to remove.

4The tribunal in Amirteymour purports to distinguish JM (Liberia) on the facts in order to avoid having to deal with human rights grounds, but it really is hard to see how the case can really be distinguished. The fact that the specific situation in JM (Liberia) was a variation application does not seem relevant to the ratio. To ascertain the ratio, we turn to paragraph 16 of JM (Liberia):

Evidently the court has to decide whether an “immigration decision” consisting in a refusal to vary leave, which is appealed pursuant to section 82(2)(d), is an immigration decision “in consequence of which” the appellant’s removal would be unlawful under the Human Rights Act section 6 as being incompatible with the appellant’s Convention rights. The answer to the question must, I think, depend on the sense Parliament intended to give to the phrase “in consequence of”. In a case where variation of leave has been refused, removal is not an immediate consequence. Removal directions must separately be given if the appellant is to be removed under the present statutory regime. Such directions cannot be given contemporaneously with the refusal to vary leave. But removal may at least be an indirect consequence of the refusal to vary: without it, removal directions could not lawfully be given. Did Parliament, in enacting section 84(1)(g), intend this latter, wider sense of consequence or only the narrower sense so that it referred to an imminent removal?

The answer to the question is then a resounding “yes”. We can see that variation is just given as an example of a situation where removal is not immediate, it is not the basis of the ratio. Also, I repeat my earlier criticism of the underlying assumption that the Home Office is correct; on the case of the appellants they are in fact lawfully resident as they fall within section 7 of the Immigration Act 1988.

5The idea that human rights grounds can and must be disentangled from EEA and other grounds of appeal is surely mistaken. Section 55 of the Borders, Citizenship and Immigration Act 2009 — the duty to consider the best interests of children — must be considered in every decision by the Home Office. The same applies to determinations of the tribunal. See for example Granovski v Secretary of State for the Home Department [2015] EWHC 1478 (Admin). To try and separate out human rights issues from section 55 and Charter of Fundamental Rights issues is simply impossible, as well as undesirable: the facts and issues to be considered under EEA appeals (for example in Zambrano cases) are often very similar to those that must be considered in a human rights appeal. The extent to which the EU and ECHR law issues may be intertwined is illustrated by the reference to the Court of Justice of the European Union by the Court of Appeal in the case of NA (Pakistan) [2015] EWCA Civ 140. In any event, to have to litigate the same facts and issues twice is just ridiculous.

6The idea that an applicant for derived rights of residence has not also made an implied human rights application is equally other worldly. Under the new appeals regime introduced by the Immigration Act 2014, many appeals will flow from “implied” human rights applications, as the Home Office itself recognises. For example, an applicant for a spouse visa under Appendix FM will be applying under the rules and may well be hoping to succeed under the rules. If he or she does not succeed, for example because the application is rejected on genuine relationship grounds, the Home Office accepts that the applicant will have a right of appeal to the tribunal on human rights grounds.

7As I understand it, the issues were not clearly notified to the advocates in advance and there were no directions. It is all very well listing a case for a major issue of significance to be decided but it would be helpful to know in advance. At least there were some claimant lawyers acting in this case, though, unlike several other recent important cases that the tribunal has for reasons of its own selected for reporting.

Despite these objections (there are no doubt more) and the strong possibility that the decision will be overturned in due course, we are stuck with it for the time being. Those with current EEA appeals who also rely on human rights arguments will need to make a second application later on or, perhaps, make application now and try and join up the appeals together. This latter possibility seems impractical, however, particularly with appeals taking over a year to list at the moment and with the astronomical fees plus Immigration Health Surcharge for such applications.

The Home Office position on these cases is baffling. It smacks of tactics rather than strategy and symbolises the problem Home Office has with managing its difficult immigration workload: unnecessarily making more work for itself in the hope that this somehow makes life harder for migrants and their families. Rather than dealing with cases efficiently in one go, the Home Office defers its case load, wanting those with human rights cases (usually families) to make an expensive later human rights application if their EEA application fails. At which point such applicants will no doubt be characterised as pursuing never-ending litigation, as if that were their fault rather than that of the Home Office.

Aside from the issue that the Home Office does actually make a short term profit from these applications, this otherwise makes no sense if everyone does in fact make such a second application. It merely delays final resolution of the case, which may well cost additional welfare support funding, and absorbs additional Home Office and courts and tribunal services resources dealing with the second application and appeal. Presumably the Home Office hopes that many families will not be able to afford the fee for the second application and only a few second applications will be made, and considers this an acceptable price for excluding human rights arguments from all EEA appeals. It is spiteful self harm by the Home Office.

The Home Office needs saving from itself sometimes but the immigration tribunal is hardly the institution to do so.