Human rights not arguable in EEA appeals unless s.120 notice served
The Upper Tribunal (Mr Justice McCloskey, Mr Ockelton and Upper Tribunal Judge Rintoul) has recently decided in Amirteymour and Others (EEA appeals; human rights)  UKUT 00466 (IAC) that unless the Home Office serves a notice under section 120 of the Nationality, Immigration and Asylum Act 2002 requiring an appellant to state any additional grounds for wishing to remain in the UK, an appellant in an EEA appeal is not able to raise human rights as a basis for challenging the refusal decision.
The facts of the appeals before the Upper Tribunal were similar; each appellant had overstayed in the UK and had made applications to the Home Office for a residence card as confirmation of their right of residence in the UK under the Immigration (European Economic Area) Regulations 2006. Each application was refused and as part of their submissions in support of their appeal the appellants sought to argue that their removal from the UK would breach their right to respect for their private and family life under Article 8 of the ECHR.
The question for the Upper Tribunal to resolve was ‘can a Human Rights challenge to removal be brought in such an appeal when no notice under section 120 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") has been served and where no EEA decision to remove has been made?’ In short, the Upper Tribunal held that it could not.
The Upper Tribunal stated that each appellant had received a decision from the Home Office refusing to issue documentation as confirmation of the right of residence under EU law and that no decision to remove them from the UK had been taken. Although the appellants sought to argue that requiring them to leave the UK would breach their right to respect for their private and family life, as none had been issued with a s.120 notice, the Upper Tribunal held that this could not be considered by the Tribunal on appeal.
The Upper Tribunal noted that there is a distinct difference between those who require leave to enter the UK under the Immigration Rules and the right of residence under EU law. Those who assert a right to leave to remain under Article 8 require a positive decision to be made by the Secretary of State under the Immigration Rules, whereas there is no such requirement under EU law (paragraph 30).
This distinction is reflected in the legislative regime whereby the 2006 Regulations expressly exclude the possibility of relying on challenging a decision by reference to the ground of appeal in s.84(1)(a) of the 2002 Act, namely on the basis that the decision is not in accordance with the law.
As the starting point for consideration of Article 8 is now contained within the Immigration Rules, the Tribunal stated at paragraphs 41 and 42:
‘41. While we accept that the area covered by the Rules now covers areas previously dealt with by means of policies, if they were covered at all, the fact that the area has expanded to cover almost all areas covered by article 8 is not in principle a good reason effectively to ignore the clear provisions preventing it being argued in an EEA appeal that the decision was not in accordance with the Rules. It is not suggested that, for example, appellants could argue that they met the requirements for leave to remain as Tier 4 Student migrants, or, formerly, the long residence rules.
42 Any consideration by a court of article 8 issues must now commence with a consideration under the Rules, yet that is an analysis which could not be carried out in an EEA appeal, given that the grounds of appeal prohibit an analysis of whether a decision was not in accordance with the Rules. While, arguably, a consideration of article 8 "outside the Rules" might not fall at that hurdle, it [is] not an analysis that could properly be conducted; it would be an entirely artificial task to assess the article 8 issues "outside the rules."’
Referring to JM (Liberia)  EWCA Civ 1402 (in which the Court of Appeal held that a refusal to vary leave was for the purposes of s84(1)(g) an immigration decision in consequence of which the Appellant’s removal would be unlawful under s6 of the Human Rights Act 1998 as being incompatible with Convention rights since removal may at least be an indirect consequence of the refusal to vary) and seeking to distinguish it, the Upper Tribunal stated at paragraph 50:
‘[JM (Liberia)] was not a case which concerned the EEA regulations; it concerned a situation whereby an appellant's application for leave to remain had been refused. As a consequence of that, if unsuccessful in an appeal, he would no longer have leave to remain. In these appeals, however, the claimants did not have leave to remain at the time of their applications. The decisions made to refuse residence cards did not alter their status. Accordingly, neither the factual matrix nor the reasoning inJM (Liberia)has any application to appeals of this nature […]’.
Turning to the question of the jurisdiction, the Upper Tribunal considered the leading cases on the question of considering new matters raised on appeal in a section 120 notice and held, consistently with Lamichhane and Patel, that an appellant may not raise any ground for the grant of leave to remain different from that which was the subject of the decision of the Secretary of State appealed against unless they have been served with a s.120 notice.
As a consequence of the Upper Tribunal’s decision, an appellant who has received a refusal decision from the Home Office which contains no One Stop Warning cannot raise the issue of human rights on appeal. Instead, this will need to be raised as part of a fresh application to the Home Office.
If you have received a decision from the Home Office refusing an application for an EEA residence card then, in the absence of a removal decision, the decision must be scrutinised carefully in order to determine whether a s.120 notice has been issued. Depending on the date of the decision and when the appeal was filed, it may be necessary to obtain the Secretary of State’s consent to raise a new matter on an appeal under the amendments to s.85 introduced in April this year.