Upper Tribunal Clarifies Boundaries of Human Rights Claims in EU Settlement Scheme Appeals

Citation: [2023] UKUT 293 (IAC)
Judgment on

Introduction

The case of Taulant Dani v Secretary of State for the Home Department is a matter arising within the jurisprudence of the UK’s immigration law, with particular reference to appeals against decisions under the EU Settlement Scheme (EUSS) and their interaction with human rights claims. This article provides a structured analysis of the Upper Tribunal (Immigration and Asylum Chamber) decision, which set out pertinent legal principles relating to human rights claims within the context of immigration appeals.

Key Facts

The appellant, Taulant Dani, an Albanian citizen, sought to challenge the Home Department’s decision to refuse him pre-settled status under the EUSS. Dani asserted that the refusal violated his Article 8 ECHR rights—pertaining to respect for one’s private and family life. Notably, the refusal was based on the timing of Dani’s marriage to an EU citizen, occurring after the specified cutoff date in the Immigration Rules’ Appendix EU, rendering him ineligible under the EUSS.

The First-tier Tribunal rejected Dani’s Article 8-based objections as preliminary issues, given they were not considered directly relevant to the substance of the decision being appealed against. Dani appealed that decision, arguing that the tribunal should have jurisdiction to consider his human rights claims.

The Upper Tribunal’s decision clarified several key legal principles:

  1. Definition of Human Rights Claim: A human rights claim under section 113(1) of the 2002 Act refers to a claim that removal or required departure from the UK would unjustifiably interfere with ECHR rights. Dani’s claim did not fit this definition as it did not relate to removal but rather to refusal of EUSS leave.

  2. New Matter Regime: A human rights claim relating to removal is a “new matter” when not previously considered by the Secretary of State, and therefore requires consent from the Secretary for the tribunal to consider. Dani’s claim did not qualify as a “new matter” as it did not concern removal.

  3. Relevance to Substance of Decision: The Tribunal may only consider matters relevant to the decision appealed against. In this case, Article 8 considerations associated with refusal of EUSS leave did not bear upon the substance of the EUSS decision and thus were deemed irrelevant.

  4. Role of Section 7(1) of the Human Rights Act: Section 7(1)(b) of the Human Rights Act pertains to relying on Convention rights as a defense in proceedings, acting as a ‘shield’ rather than a ‘sword’. It does not permit the advancement of free-standing human rights claims in the immigration tribunal.

  5. Engagement of Article 8: Even if the tribunal had jurisdiction, Article 8 is not typically engaged by a decision refusing leave under the EUSS without additional factors suggesting interference with private or family life.

Outcomes

The Upper Tribunal dismissed the appeal, upholding the First-tier Tribunal’s decision, and reinforced the boundaries of its jurisdiction regarding human rights claims in the context of EUSS decisions. The tribunal confirmed that it lacks the mandate to consider free-standing non-removal human rights submissions and that appeals must be grounded in matters relevant to the EUSS decision.

Conclusion

The decision provides a definitive interpretation of the scope of jurisdiction that the First-tier Tribunal has over human rights claims within immigration appeals. It underscores the distinction between human rights claims intended to challenge a prospective removal and those unrelated to removal, clarifying the non-applicability of the “new matter” regime in situations like Dani’s. Additionally, the case reaffirms section 7(1)(b) of the Human Rights Act as a defensive means in legal proceedings rather than a basis for initiating a claim. Importantly, the case reflects the broader approach taken by UK tribunals to separate human rights claims from the EUSS application process, thus demarcating the parameters for appellants challenging immigration decisions based on ECHR grounds.

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