https://tribunalsdecisions.service.gov. ... 11721-2021
UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE JARVIS
https://tribunalsdecisions.service.gov. ... 11721-2021
In this case, the First Tier Tribunal judge applied human rights to the child!!! That proves this issue of considering EUSS appeals with regard to ECHR is not so obvious or straightforward.
It seems some First Tier judges do understand that they should apply human rights to EUSS cases. They are just being overruled by the president of the First Tier Tribunal, and the Upper Tribunal.
===================================================24. We are satisfied that the material error made by the Judge was to conclude the existence of a human rights appeal as arising from an appeal made under the 2020 Regulations, without more.
The Upper Tribunal has recently confirmed in the reported decision of Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) that regulation 9(4) of the 2020 Regulations confers a power on the First-tier Tribunal to consider a human rights ground of appeal, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the respondent, in this matter the ECO:
‘92. The first question is to decide whether the First-tier Tribunal has jurisdiction, in an appeal of this kind, to consider human rights.
The question arises because decision-making under residence scheme immigration rules (Appendix EU) does not involve a consideration of the applicant’s (or any other person’s) rights under Article 8 of the ECHR.
26. That leaves us, as a panel, with a two-year old child residing apart from her parents and elder sibling, consequent to the personal impact of the United Kingdom’s withdrawal from the European Union. No doubt has ever been raised in these proceeding as to the genuineness of parental love towards the claimant, and the strains separation is having upon the claimant’s parents – lawfully present in this country - who separated from their younger child when she was months old. Over the course of the hearing, we saw the claimant’s sibling wandering around our hearing room, eating crisps and charming us with her smile and humour. Her separation from the claimant was at the forefront of our minds; they are four and two years of age and could reasonably expect to be growing up and playing with each other, developing those close sibling bonds that can be a bedrock through life.
27. At our request, Mr. Tufan took instructions, and we were subsequently informed that consequent to the exceptional circumstances arising, the ECO was willing to consent to the Tribunal considering the human rights (article appeal as a new matter.
UK Human Rights Act 1998
1. Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation
2. A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
On Derogation
The Human Rights Convention recognises that sometimes States experience situations of extreme crisis. In those times, it might not be possible for a State to achieve all of the Convention obligations it’s adopted. So, the Human Rights Convention provides some flexibility for States dealing with crises – it gives States a power to derogate from certain Convention obligations through Article 15. There is no derogation for Appendix EU as far as I am aware.
On Reservation
Reservations are statements that modify the UK's obligations under the ECHR. They allow states to adjust particular obligations. No reservation has been made regarding the 2020 Regulations, as far as I am aware.
Summary
If there was a derogation or a reservation regarding EUSS and Article 8, I am pretty sure the judges would have said so. Instead, the judges say that because the 2020 Regulations do not "specifically mention" Article 8, that they don't have to or can't take human rights into account. Hogwash.
The Immigration Rules don't have to specifically say a person can appeal on human rights grounds. Any action taken by a public authority is subject to ECHR. How is this point so difficult???? This situation is nothing short of scandalous.