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As a direct access immigration barrister practising both within UK law and EU a highly relevant case has thrown itself up, put shortly, has Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC) signalled a watermark in immigration law? Can human rights grounds still be argued in any EU rights of residence appeals?

“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 has any application to appeals of this nature.”

On the surface it would appear so… However, as an experienced direct access immigration barrister there are some criticisms that can be levelled at this decision.

One of the issues with the Amirteymour decision is that it assumes the Home Office case is correct as a starting point. It also confuses the issue by stating that the appellants did not have “leave”. However, they had for some time already had a EU law right of residence.

Second, decision has an essence of abnormality about it, and is not too dissimilar from an earlier Upper Tribunal’s decision: JM (Liberia) before the Court of Appeal overturned it. Therefore any insinuation that a refusal of EEA residence documentation is not connected to the removal of the individual and also their family, and so does not engage human rights is an unfeasible notion as unconnected to the real lives of those affected, as is the personal and professional experience of judges who hear cases.

Third, in Amirteymour the tribunal attempted to distinguish JM (Liberia) on the facts in order to avoid delving into human rights arguments. However, in reality it is difficult to see where the distinction between the two cases lies. On closer inspection, the fact that the specific situation in JM (Liberia) was a variation application does not appear relevant to the ratio.

Fourth, the notion that human rights grounds must be separated from EEA and other grounds of appeal is misunderstood. Section 55 of the Borders, Citizenship and Immigration Act 2009 which highlights the duty to consider the best interests of children – must be considered in every decision by the Home Office. The same applies to determinations of the tribunal. Therefore to attempt to separate human rights issues from section 55 and Charter of Fundamental Rights issues is quite simply beyond the realms of possibility. This is partly due to the fact that the facts and issues often considered under EEA appeals are more often than not identical to those considered in any human rights appeals.

Fifth, the amended regime under the Immigration Act 2014 underlines that many appeals will flow from implied human rights applications. Therefore dispelling the notion that any applicant who applies for derived rights of residence will not also have made an implied human rights application.

What appears above is a brief summary, but if you’re looking for deeper analysis of the case the excellent Freedom of Movement Blog by Colin Yeo goes into greater depth.

Paul Turner is a highly regarded direct access immigration barrister and is the head of Imperium Chambers, Grays Inn Buildings, Grays Inn, he also practises from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.