Article 8 not automatically engaged by a refusal under the EU Settlement Scheme

In Dani (non-removal human rights submissions) Albania UKUT 293 (IAC) the Upper Tribunal has said that an application made under the EU settlement scheme does not in itself amount to a human rights claim. This is yet another case where people trying to access their rights under the EU settlement scheme have been penalised owing to an inability to get married during the pandemic.


The Home Secretary rejected 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”.

It was argued that the decision to refuse the appellant’s EU settlement scheme application breached his article 8 rights. There was also an attempt to broaden the ability to raise human rights arguments at appeal beyond the limitations at section 113(1) of the Nationality, Immigration and Asylum Act 2002 by arguing that a refusal of leave to remain was a breach of the European Convention on Human Rights.

The Upper Tribunal’s decision

These arguments were dismissed by the Upper Tribunal. The headnote says:

1. The mere refusal of leave to remain under the EUSS is not, without more, a “human rights claim” under section 113(1) of the 2002 Act.

2. Consequently, the “new matter” regime does not regulate the Tribunal’s consideration of non-removal human rights submissions. 

3. But the Tribunal may only consider matters which it thinks are “relevant to the substance of the decision appealed against”.

4. Whether Article 8 is engaged by a decision to refuse an EUSS application is not “relevant to the substance of the decision appealed against”; the Tribunal cannot not consider it.  The Tribunal does not enjoy a broad, unencumbered jurisdiction to consider non-removal human rights submissions at large.

5. In any event, Article 8 will not, without more, be engaged by a decision to refuse leave to remain under the EUSS.

6. Section 7(1)(b) of the Human Rights Act 1998 does not permit an appellant to advance a free-standing Article 8 claim in proceedings before the First-tier 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 regulation 9(5) of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

Like this article? Share on


Related articles

Information about our own complaints process, raising concerns to the Legal Ombudsman and to us

We want to give you the best possible service. However, if at any point you become unhappy or concerned about the service we provided then you should inform us immediately, so that we can do our best to resolve the problem.

In the first instance it may be helpful to contact the person who is working on your case to discuss your concerns and we will do our best to resolve any issues at this stage. If you would like to make a formal complaint, then you can read our full complaints procedure here. Making a complaint will not affect how we handle your case.

The Solicitors Regulation Authority can help you if you are concerned about our behaviour. This could be for things like dishonesty, taking or losing your money or treating you unfairly because of your age, a disability or other characteristic. 

You can raise your concerns with the Solicitors Regulation Authority.

What do to if we cannot resolve your complaint

The Legal Ombudsman can help you if we are unable to resolve your complaint ourselves. They will look at your complaint independently and it will not affect how we handle your case.

Before accepting a complaint for investigation, the Legal Ombudsman will check that you have tried to resolve your complaint with us first. If you have, then you must take your complaint to the Legal Ombudsman:

  • Within six months of receiving our final response to your complaint; and,
  • Within one year of the date of the act or omission about which you are concerned; or
  • Within one year of you realising that there was a concern.


If you would like more information about the Legal Ombudsman, you can contact them at the following details:

 Contact details

This website uses cookies to ensure you get the best experience on our website. By closing this message, you consent to our cookies on this device in accordance with our cookie policy unless you have disabled them.