SSHD v GJERA
The idea that any EUSS applicant would
a.) have to be served a section 120 notice, and
b.) have to obtain the approval of the Secretary of State for the Judge to even consider Article 8 human rights,
is a blatant violation of the European Convention on Human Rights.
The other idea that EUSS applicants must make a special application is also an appalling violation of the ECHR. (Notice the vague manner in which everyone talks about this application).
The UK's barristers and solicitors need to be willing to challenge these decisions to either the European Court of Human Rights, or to the European Court of Justice, or both. The discussion should not end in the UK court system.
This court system is the same system which, for years agreed with Provision 15 of the EEA Regulations which said derivative card holders were not habitually resident and were ineligible for permanent residence. The E.K. versus Netherlands case proves they were wrong. Yet, nothing has been done to right this wrong.
This court system is the same one that allowed the Home Office to argue - for years - that Zambrano carers who had leave to remain under Appendix FM were not Zambrano carers.
In another vein, has a single UK judge referred a single question to the European Court of Justice? The E.K. case was referred by the Netherlands judge to the CJEU. That is why we have the ruling today.
So, the court system can rule that people should have to go on some sort of hunting exercise for a "human rights application", but that rule will not stand over time. Just think about it.
a.) If the only way to have your human rights considered, is to fill out an application each and every time, then you will always fill out a human rights application at the beginning. That leads us to where we are today.
b.) Alternatively, you will have to fill out two applications simultaneously, one to deal with how the Home Office did not follow the rules, and another application on how the Home Office interfered with your human rights.The judges seem to want more work. Or, maybe some people are hoping people just give up?
So, a pattern emerges. Judges who agree with the President of the Upper Tribunal in the Celik case say EUSS applicants need to "make a human rights claim". Judges who follow the ECHR apply relevant ECtHR decisions to appeals. That is what the UK signed up to.
Based on my reading, Mr Gjera may be able to go directly to the European Court of Human Rights. The judge in this case mentions the Court of Appeal. Given the number of years spent on this issue, and the number of people impacted it seems arguments can be made as to why the European Court should agree to consider whether Mr Gjera's human rights should have been considered and what the outcome would be. The First-tier Tribunal judge considered Mr Gjera's human rights and decided he should be granted settlement. It seems likely the European Court of Human Rights would agree.
UPPER TRIBUNAL JUDGE KEITH
https://tribunalsdecisions.service.gov. ... 15426-2021
Representation:
For the appellant: Mr P Georget, Counsel, instructed by Malik & Malik solicitors
For the respondent: Mr T Melvin, Senior Home Office Presenting Officer
28. If the Secretary of State’s appeal is successful on the basis of the Claimant had not made a human rights claim, any such claim
may simply go through the usual process for consideration by the Secretary of State and if necessary, onwards to a First-tier Tribunal.
33. In respect of the FtT’s reasons, which allowed the Claimant’s appeal by reference to article 8 ECHR,
there is no decision which engages article 8; no section 120 notice has been issued, and the Secretary of State has not consented to any new matter being considered. The FtT therefore erred in law, in allowing an appeal on the basis of which the Secretary of State had not reached a decision.
34.I bore in mind paragraphs 7.2(a) and (b) of the Senior President’s Practice Statements...The Claimant’s appeal under the 2020 Regulations falls to be dismissed
because of Celik. There is no human rights decision on which an appeal can be remade.