Article 8 rights and EU settlement Scheme Refusals

In the recent case of Dani (non-removal human rights submissions) Albania UKUT 293 (IAC)) the Upper Tribunal determined that an application made under the EU settlement scheme does not amount to a human rights claim. This is yet another case where people were unable to get married during the pandemic due to Registry Offices being shut and when they try to access their rights under the EU settlement scheme they are refused because they could not get married before the due date.

The Home Secretary refused the appellant’s application for pre-settled status on the basis that the marriage took place after 31 December 2020 and the appellant had not been issued with a relevant document which meant he could not meet the definition of “durable partner”.

During the appeal it was argued that the decision to refuse the appellant’s EU settlement scheme application breached his article 8 rights and that a refusal of leave to remain was a breach of the European Convention on Human Rights. This argument was rejected by the Tribunal.

The position therefore remains that where someone wants to raise human rights in an appeal against the refusal of an application made under the EU settlement scheme, if they have not previously raised human rights as part of the application then they will need consent from the Home Secretary to raise this as a “new matter” under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

The Appellant, as have many other people now has to seek leave to remain under Appendix FM of Immigration Rules in order to remain in the country with his wife.

If you have been refused an EUSS application for similar reasons there are other routes which may be possible and advice from an experienced Immigration Advisor should be sought on which is the best for you to take depending on your family circumstances.