Taulant Dani v Secretary of State for the Home Department

A refusal of leave under the EU Settlement Scheme is not, without more, a refusal of a human rights claim under section 113(1) of the Nationality, Immigration and Asylum Act 2002. Non-removal human-rights submissions are therefore not a “new matter” requiring the Secretary of State’s consent. That does not give the First-tier Tribunal a general jurisdiction to decide them.

Under regulation 9(4) of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020, a matter must be relevant to the substance of the EUSS decision appealed. Article 8 will not ordinarily be engaged by a refusal which merely leaves an applicant without leave and exposed to a future possibility of removal. Section 7(1)(b) of the Human Rights Act 1998 permits reliance on Convention rights as a shield in existing proceedings, not a free-standing claim before the First-tier Tribunal.

The appellant, an Albanian national, appealed against the refusal of his application for pre-settled status under the EU Settlement Scheme. He accepted that he could not meet Appendix EU because his marriage to his Spanish sponsor post-dated the specified date and his earlier relationship had not been recognised as a durable partnership.

First-tier Tribunal Judge Veloso dismissed the appeal in a decision promulgated on 23 December 2022. She found that the appellant and sponsor were in a genuine and subsisting relationship, but declined to determine his free-standing Article 8 submissions and dismissed the EUSS appeal.

With permission, the appellant contended that his Article 8 submissions were neither a human-rights claim nor a new matter, and that section 7(1)(b) of the Human Rights Act 1998 independently required the Tribunal to determine them. The central issue was whether those submissions fell within the Tribunal’s statutory jurisdiction on an EUSS appeal.

1. Appeal dismissed. The First-tier Tribunal made no material error of law in refusing to entertain the appellant’s free-standing Article 8 submissions and in dismissing the EUSS appeal.

2. A human-rights claim under section 113(1) of the Nationality, Immigration and Asylum Act 2002 concerns a claim that removal, a requirement to leave, or refusal of entry would be unlawful under section 6 of the Human Rights Act 1998. A contention that the refusal of EUSS leave itself breaches Article 8 is not such a claim. It is therefore not a ground of appeal of the kind listed in section 84 and cannot be a “new matter” under regulation 9(6) of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020.

3. That conclusion did not enlarge the Tribunal’s jurisdiction. Regulation 9(4) permits consideration only of a matter relevant to the substance of the decision appealed against. The prescribed EUSS grounds define and limit the jurisdiction. A free-standing non-removal Article 8 contention does not become justiciable merely because it is outside the new-matter regime.

4. Whether Article 8 was engaged was not relevant to the substance of this EUSS refusal. The application was made under a distinct scheme based on the EU Withdrawal Agreement, not Article 8 criteria. The appellant had never held leave; the decision did not impose an enforcement requirement or expose him to removal for the first time. It merely failed to regularise an existing unlawful status. Any future removal was an indirect consequence. Article 8 may exceptionally be engaged by a refusal of a more beneficial form of leave, but that was not this case.

5. Section 7(1)(b) of the Human Rights Act 1998 allows a litigant to rely on Convention rights defensively in legal proceedings. It is a shield, not a means of prosecuting a free-standing Convention claim before the First-tier Tribunal. Section 7(1)(a) could in principle support such a claim only in an appropriate court or tribunal designated by rules; no such jurisdiction had been conferred on the First-tier Tribunal. The appellant remained free to make a removal-based human-rights claim to the Secretary of State.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appellant’s appeal and held that the decision of First-tier Tribunal Judge Veloso involved no material error of law.
• First-tier Tribunal: In a decision promulgated on 23 December 2022, dismissed the EUSS appeal. It accepted that the relationship was genuine and subsisting, but declined jurisdiction over the appellant’s free-standing Article 8 submissions.