We discuss whether In an EU appeal, brought about because of a Home office refusal of permission to stay based on marriage or a relationship with a European national, it is possible to argue human rights considerations before a court or tribunal, that even though the applicant may not comply with the EEA regulations 2016, nevertheless there are article 8 considerations under family life due to for example a stepfather- stepdaughter relationship which should be taken into account in allowing the appeal under the Human Rights Act 1998.
The case of Munday (EEA decision: grounds of appeal)  UKUT 00091 (IAC), is authority for the fact that in an appeal against an EEA decision under the immigration (EEA) Regulations 2016, the sole ground of appeal is that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to and residence in the UK (sched 2, para 1).
Consequently, in such an appeal an appellant may not rely on human rights grounds in the absence of completing and signing a section 120 notice having been served at the discretion of the Secretary of State and providing with it a statement of additional grounds in which reliance is placed upon human rights or there has been an additional decision to refuse a human rights claim.
An applicant who makes an application for permission to stay in the UK based on an asylum or humanitarian protection claim, human rights claim or if a decision to remove or deport that person has been made, has a duty to raise new matters with the Secretary of State as soon as it is reasonably possible.
Unfortunately, it is at the discretion of the Secretary of State to consider whether there may be other matters which the applicant may wish to raise if there has been a refusal. If he considers so he serves a section 120 notice under the Nationality Immigration and Asylum Act 2002 as amended by the Immigration Act 2014 and this needs to be sent back to the Home Office duly completed. Section 120 notice is also referred to as a one-stop notice, as it encompasses all other issues that were previously not raised and hence “one stop”. The notice specifically states that an applicant is not to repeat what the Home Office is already aware of and has been ruled upon.
Insofar as EEA matters are concerned, the Immigration (European Economic Area) Regulations 2016th also provide that a section 120 notice can be served in EEA claims.
If the applicant does not respond to the section 120 Notice but then makes a later claim, say for example in the grounds of appeal making fresh allegations, the tribunal can refuse to deal with that particular claim.
The case of Lamichane v SSHD [2012} EWCA civ 260 established that the service of section 120 notices is at the discretion of the Secretary of State. Therefore, the power of the tribunal to consider new grounds is restricted to the Secretary of State’s discretion.
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.