[2023] UKUT 00293 (IAC)

The appellant is a citizen of Albania. He entered the UK clandestinely in 2013 and has resided here ever since. In 2016, he began a relationship with Carmen Maria Morente Fuentes, a Spanish citizen (“the sponsor”), now resident with leave under the EUSS. In late 2020, he applied for a residence card as the durable partner of the sponsor under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). The application was refused; the Secretary of State did not accept that the appellant and the sponsor were in a durable relationship. The decision attracted a right of appeal, but the appellant appears to have been represented by different solicitors at the time, and those currently representing him have been unable to ascertain whether an appeal was brought against that decision.

The appellant and sponsor wanted to get married from May 2020 onwards, but their plans were delayed by the Covid pandemic. They eventually married on 24 April 2021, and the appellant applied for pre-settled status under the EUSS shortly afterwards. By a decision dated 28 November 2021, the Secretary of State refused the application; the appellant’s marriage to the sponsor took place after the “specified date” in Appendix EU of the Immigration Rules, namely 11PM on 31 December 2020. Nor could the appellant succeed as a “durable partner”; their relationship had not been recognised in that capacity by the Secretary of State under the 2016 Regulations through the issue of a “relevant document”.

The appellant appealed to the First-tier Tribunal against the Secretary of State’s decision of 28 November 2021. The appellant was represented before the First-tier Tribunal by Mr Toal, as he was before us. Mr Toal’s submissions before the judge were twofold.

First, he submitted that the decision to refuse the appellant’s EUSS leave breached the appellant’s Article 8 ECHR rights and was unlawful under section 6 of the Human Rights Act. The Secretary of State wrongly refused the appellant’s application as a durable partner, before the “relevant date”, and, in any event, they were prevented from getting married by the Covid pandemic. In the circumstances, there could be no public interest in the appellant’s removal. Secondly, he advanced a range of submissions, and called evidence relating to, the strength of the appellant’s relationship with the sponsor. He accepted that the appellant could not succeed under the Appendix EU as drafted, largely for the reasons given by the Secretary of State in the refusal letter.

In relation to the first issue, Mr Toal accepted that under the appeal regime established by the 2020 Regulations, read with the 2002 Act, the appellant had not made a “human rights claim”, as defined. He submitted that that was a jurisdictional point in the appellant’s favour. While the 2020 Regulations prevented consideration of a “human rights claim” in the absence of the Secretary of State’s consent, that term as defined related to a claim made to the Secretary of State concerning an individual’s prospective removal. It required a corresponding decision of the Secretary of State addressing the ECHR-compatibility of removal. In these proceedings, there had been no such claim to the Secretary of State, nor a corresponding decision by the Secretary of State, yet the refusal of leave to remain to the appellant meant that he remained liable to removal in the future, thereby breaching his Article 8 rights. Mr Toal submitted that there was no jurisdictional bar to the Tribunal considering general human rights-based submissions that sought to rely on general unlawfulness under section 6(1), which provides:

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

Mr Toal also submitted to the judge that, pursuant to section 7(1)(b) of the Human Rights Act, the appellant was entitled to rely on human rights-based grounds in any event. The tribunal enjoyed the jurisdiction to consider whether the refusal of the appellant’s application amounted to an unlawful interference with his rights under Article 8 of the European Convention on Human Rights (“the ECHR”).

In her decision promulgated on 23 December 2022, the judge dealt with Mr Toal’s Article 8 submissions as a preliminary issue from paragraphs 19 to 25. Rejecting them, she concluded that Mr Toal’s interpretation of sections 6 and 7 of the Human Rights Act, if correct, would render the statutory delineation of appeal rights under the 2002 Act pointless. It would allow the “new matter” regime to be overridden at any time. The same applied to appeals under the 2020 Regulations. She concluded that the tribunal’s jurisdiction was that which applied pursuant to the 2002 Act, as applied by the 2020 Regulations. The appellant enjoyed the ability to make a separate application for leave to remain, in which he could advance his Article 8 claim which, if refused, would enable him fully to argue his case before the tribunal.

The judge accepted that the appellant and the sponsor were in a genuine and subsisting relationship. Those findings have not been challenged. However, largely for the same reasons the Secretary of State had refused the appellant’s EUSS application, and relying on Celik (EU exit; marriage; human rights) [2022] UKUT 220 (IAC), she dismissed the appeal.

The appellant now appeals against the decision of the judge with the permission of Upper Tribunal Judge Lane, who considered that it was arguable that the judge had erred by declining jurisdiction to hear the appellant’s appeal on Article 8 grounds.