Dani vs Secretary of State for the Home Department

This case involved Taulant Dani, an Albanian citizen, who appealed against the Secretary of State for the Home Department's decision to refuse his application for pre-settled status under the EU Settlement Scheme (EUSS).

TLDR:

• The appellant, Dani, was refused pre-settled status under the EUSS.
• The refusal was based on the timing of his marriage and lack of recognition as a durable partner.
• The Upper Tribunal clarified that non-removal human rights submissions cannot be considered under the EUSS appeal framework.
• The Tribunal emphasized that Article 8 ECHR is not engaged by a refusal of EUSS leave.

The appellant, Taulant Dani, entered the UK clandestinely in 2013 and resided there since. He began a relationship with Carmen Maria Morente Fuentes, a Spanish citizen, in 2016. In late 2020, Dani applied for a residence card as the durable partner of Fuentes under the Immigration (European Economic Area) Regulations 2016, but the application was refused.

After marrying Fuentes in April 2021, Dani applied for pre-settled status under the EUSS. The Secretary of State refused the application in November 2021, citing that the marriage took place after the 'specified date' and that their relationship was not recognized as durable under the 2016 Regulations.

Dani appealed to the First-tier Tribunal, arguing that the refusal breached his Article 8 ECHR rights and was unlawful under the Human Rights Act. He contended that the refusal was unjust due to the Covid pandemic delaying their marriage and that there was no public interest in his removal.

The First-tier Tribunal judge rejected Dani's Article 8 submissions, stating that the Tribunal's jurisdiction was limited by the 2002 Act and the 2020 Regulations. The judge concluded that Dani could not succeed under the EUSS criteria and dismissed the appeal.

On appeal to the Upper Tribunal, Dani argued that his human rights-based submissions should not be subject to the 'new matter' restrictions and that the Tribunal should consider them under section 7(1)(b) of the Human Rights Act. The Upper Tribunal rejected these arguments, stating that non-removal human rights submissions are not relevant to the substance of the EUSS decision.

The Tribunal emphasized that Article 8 ECHR is not engaged by a refusal of EUSS leave and that the Tribunal does not have broad jurisdiction to consider non-removal human rights submissions. The appeal was dismissed, and the decision of the First-tier Tribunal was upheld.

Legal representatives: Mr R. Toal for the appellant, Mr E. Terrell for the respondent.

Judicial Panel: The Hon. Mr Justice Dove, Upper Tribunal Judge Stephen Smith

Case Citation Reference: [2023] UKUT 293 (IAC)