Court Rules No Human Rights Grounds Are Applicable In EEA Removal Appeals

EEA Appeals – The Basics

Before discussing the recent decision of Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC), the case which has stated that human rights grounds cannot be argued in EEA appeals, it is helpful to briefly state the law as to EEA appeals to provide some background to the decision.

Under the Citizens’ Directive (Directive 2004/38/EC), EEA nationals and their family members who assert an EU right of entry or residence may be excluded or expelled on the grounds of public policy, public security or public health, non-qualification with the conditions for obtaining or retaining a right of residence, and in circumstances of abuse of rights or fraud, in accordance with the relevant principles laid down in the Directive.

Article 31 of the Citizen’s Directive provides that an EEA national or their family member can apply for scrutiny of the legality and the facts of such decisions. This is transposed into the Immigration (European Economic Area) Regulations 2006 (the ‘Regulations’).

Regulation 26 of the Regulations, states that a person may appeal to the First-tier Tribunal from an ‘EEA decision’.

‘EEA decision’ is defined in Regulation 2 to mean a decision under the Regulations that concerns:

An individual’s entitlement to be admitted to the United Kingdom
a person’s entitlement to be issued with, or to have renewed, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card
a person’s removal from the UK, or
the cancellation, pursuant to Regulation 20A, of a person’s right to reside in the UK
In order to show entitlement to bring an appeal, certain evidence specified under the Regulations must be produced:

a person claiming to be an EEA national must produce a valid national identity card or passport issued by an EEA state
a person claiming to be in a durable relationship with an EEA national must produce a passport and either an EEA family permit or sufficient evidence to satisfy the Home Office that they are in a relationship with that EEA national—note that, for the purposes of showing entitlement to bring an appeal, this evidence does not have to show that the relationship is durable
a person claiming to be the family member or relative of an EEA national must produce a passport and either:
a) an EEA family permit

b) an EEA state residence card issued by any other EEA state (except Switzerland), or

c) proof that they are (or in the case of those claiming to be a family member who have retained the right of residence, were) the family member or, if relevant, relative of an EEA national

a person claiming to have a derivative right of entry or residence must produce a valid national identity card issued by an EEA state or a passport and proof of the relevant relationship under Regulations 15A(2)–(5)

Regulation 29AA permits a person, who has instigated an appeal but has been removed from the UK on this basis prior to the appeal being heard, to apply be temporarily admitted to the UK for the purposes of attending the appeal hearing and making submissions in person. If you are admitted back into the UK via Regulation 29AA, you may be held in detention or subject to conditions set out by the Home Office, whilst your appeal is being considered.

If there is no right of appeal, judicial review may be an option worth pursuing, click here for further information.

The Decision of Amirteymour and others (EEA appeals; human rights)

The Upper Tribunal recently released an important decision which discussed whether human rights grounds can be argued in EEA rights of residence appeals.

The case concerned four individuals who had all been refused applications for EEA resident cards as a primary care giver of a British Citizen child or EEA nationals and their dependents. One of the appellants, a Mother and child, both citizens of Gambia, had their resident cards that confirmed their right of residence as the spouse and dependant of an EEA national who had been exercising Treaty Rights revoked. The Respondent then refused to issue them with residence documents confirming their retained rights of residence as the former spouse and child of an EEA national who had been exercising Treaty Rights in the UK.

In the refusal letters sent by the Respondents, the Appellants were not expressly asked to leave the country.

The most common ground to challenge a decision for removal is under Article 8 of the European Convention on Human Rights. This Article states:

Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
However, the decision of Amirteymour and others (EEA appeals; human rights) states in the official headnote:

“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 (link is external) has any application to appeals of this nature.”

Ultimately, The Home Office and Upper Tribunal were agreed that human rights must be separated from EEA and other grounds of appeal unless the correct immigration applications have been submitted before the matter reaches appeal.

However, EEA appeals and human rights grounds interlink considerably and it is extremely difficult to separate them. For example, under Section 55 of the Borders, Citizenship and Immigration Act 2009 the Home Office has a duty to consider the best interest of children in every one of its cases. Therefore, a decision or refuse a resident card which would result in the break-up of a family unit surely must engage the principles of Article 8 with respect to the right to family life.

The Current Law Regarding EEA Appeals and Human Rights

Although the decision in Amirteymour and others (EEA appeals; human rights) is likely to be overturned on appeal, at the moment it is the authority on the matter of EEA appeals and human rights. However, clients should be aware that by organising a well-prepared EEA appeal that also raising human rights grounds, a great deal of money and time can be saved in the long run should a subsequent stand alone Human Right application be made at a later date.

Government reveals hard line on immigration as new bill is published

UK Govermnet and the Home office, September 24 2015

The Government has published the Immigration Bill 2015 / 2016. This legislation contains rules to curb illegal working and protect the exploitation of migrant workers, as outlined in the Queen’s speech which was delivered on 27 May 2015. With the migrant crisis being headline daily news, it should be noted that the government has taken hard stance on immigration.

A new Immigration Bill has significant proposals and a tougher approach. The proposals set out in the Bill, many of which emanate from the Conservative party manifesto, have been heralded by the immigration minister, James Brokenshire as, introducing the “full force of government machinery” to tackle abuses.

Key issues for employers:

extending the existing criminal offence of knowingly employing an illegal migrant, to apply where an employer has “reasonable cause to believe” that a person is an illegal worker. The applicable sentence will also increase from two to, potentially, five years;
creating a new offence of illegal working which will enable the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002;
giving the Secretary of State the power to introduce an “immigration skills charge” on certain employers who sponsor skilled workers from outside of the European Economic Area. This is in order to address the current skills gap in the UK workforce. The Government has asked the Migration Advisory Committee to advise on how this might operate but it is likely to involve an additional charge for each skilled worker brought into the UK under Tier 2;
requiring public authorities to ensure that public sector workers in customer-facing roles speak fluent English;
a new role of Director of Labour Market Enforcement, who will pull the strands of enforcement together in whatever form they take –whether against gangmasters, rogue employers, or otherwise.
This Bill also carries with it a number of implications for Landlords. The Bill is intended to clamp down on illegal immigration, tackle the exploitation of low skilled workers and sanctioning those that enable exploitation. Landlords checking the immigration status of potential tenants is being seen as a way to reduce exploitation of immigrants; especially those travelling illegally, by not allowing migrants to rent their property without the appropriate documentation.

Potential impact

The broadening of the criminal test for employment of illegal workers will accompany other extensions of existing civil and criminal legislation in this area and will have relevance for all UK employers. Specifically, there will inevitably be increased onus upon employers to consider an individual’s right to work and issues of legality during the recruitment process.

Other changes may be indirectly relevant to employers or significant to specific sectors but are nonetheless suggestive of Government direction. For example, there is definite and deliberate shift in Government emphasis upon enforcement activity, as a result of which unannounced visits are showing a marked increase. The new role to lead enforcement may also herald a more co-ordinated or targeted approach, gong forwards.

Perhaps the most intriguing change and one potentially most fraught with difficulty is the new language skills requirement in the public sector. This could prove practically significant in many respects, not least in its potential for division and, consequently, discrimination, of which employers will need to wary.

There is no doubt that immigration presents a fast-moving, as well as politically difficult, challenge for government –the former being clearly demonstrated by the publication of a new Immigration Bill within just months of new legislation last year. Political sway cannot be underestimated but it is equally trite that decisions being made now having potentially long term implications.

These latest Government proposals have already prompted criticism, some commentators fearing that, instead of reducing an unstoppable wave of illegal working, they may drive already vulnerable workers further into illegality and away from any form of protection. It remains to be seen, therefore, whether increased Government emphasis upon enforcement and a new Director of Labour Market Enforcement will act as sufficient – or sufficiently effective deterrent – to allay those concerns.

Tougher laws on the way for unlawful migrants

21 / Sep / 2015
The Government’s latest immigration bill has provided a new offence whereby people who are residing in the UK unlawfully and are caught driving face imprisonment. The new offence of driving while unlawfully in the UK will carry a maximum sentence of six months in prison and an unlimited fine in England and Wales.

The rule also provides that any one arrested for the new offence, could have their car impounded and, if convicted, the car must be forfeited. New powers provided to immigration enforcement officers will allow them to undertake searches on individuals and properties and seize driving licences if they suspect someone is here illegally.

Measures that are included under the legislation published on 17 September have been designed to create “a hostile environment” for illegal immigrants.

This new bill provides landlords with additional routes to evict illegal migrants as well as creating new offences for unscrupulous landlords who continuously rent to illegal migrants.

The other provisions of the bill include creating a new offence of illegal working,making it easier to evict migrants who do not have the correct documentation, and requiring banks and building societies to regularly check the status of their account holders.

The published bill includes detailed measures to withdraw support from refused asylum seekers and to introduce powers to electronically tag those who are refused immigration bail. The bill also includes higher penalties for those who employ illegal migrants, a new skills levy on businesses that recruit staff from outside Europe and a new role of director of labour market enforcement.

Immigration minister, James Brokenshire, has said:

“The message is clear; if you are here illegally, you shouldn’t be entitled to receive the everyday benefits and services available to hard working families and people who have come to this country legitimately to contribute. Whether it is working, renting a flat, having a bank account or driving a car, the new immigration bill will help us to take tougher action than ever before on those who flout the law.”

David Cameron has stated that the Immigration bill is designed to bring the whole of government into the battle to reduce migration flows. He promises the bill will make “Britain a less attractive place to come and work illegally”.

There will be a second reading of the bill on 13 October. It is expected to become law before the start of 2016.