The procedural formalities introduced on 1 February 2017 via the coming into force of the new 2016 EEA Regulations, mean that where an application for EEA residence documentation is not submitted on a prescribed application form and is not accompanied by specified supportive documentation, such an application is now very likely to be rejected as invalid, i.e it will not be considered at all by the Secretary of State.
Regardless of whether the Secretary of State may exercise discretion over whether to accept the application or not, it is not clear why EEA applications submitted after 1 February 2017, must now pass a validity hurdle.
Failed asylum seekers and those without leave to remain in the UK, may feel that they have no option but to leave the UK, where there seems no way of regularising their stay.
“Home Is Best”, they say, however, prior to taking such steps, it is worth while pausing to review circumstances, as adult claimants or children without leave in the UK have several options open to them having regard to several provisions of UK law, which they can appropriately avail themselves in order to seek to regularise their stay in the UK.
Following a long line of recent negative decisions in the Court of Appeal in cases such as The Secretary of State for the Home Department v AJ (Zimbabwe)  EWCA Civ 1012, the newly notified case of Quarey, R (on the application of) v The Secretary of State for the Home Department (Rev 1)  EWCA Civ 47 is a much welcome decision in relation to potential deportees with children resident in the UK.
THE PROBLEM AND THE COURT’S APPROACH IN PAPOSHVILI v BELGIUM : ECHR 13 Dec 2016
The Court itself in Paposhvili noted that it had applied the case-law established in N. v. the United Kingdom in declaring inadmissible, as being manifestly ill-founded, numerous applications raising similar issues, concerning claimants who were HIV positive or who suffered from other serious physical illnesses or mental illnesses. It was noted that several judgments had applied this case-law to the removal of seriously ill persons whose condition was under control as the result of medication administered in the Contracting State concerned, and who were fit to travel.
The Court considered from a review of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the case contemplated in D. v. the United Kingdom.
The Court observed that there were important issues at stake in Paposhvili notably concerning the expulsion of aliens who are seriously ill. Thus, the impact of the case went beyond the particular situation of the applicant.
In Paposhvili, it was argued among other issues, that the present case afforded a unique opportunity to depart from the excessively restrictive approach adopted by the Court in N. v. the United Kingdom with regard to the expulsion of persons suffering from serious illness.
It had been obvious for at least two years, that the Country Information Report of October 2014 no longer reflected the up-to-date political situation for the purposes of considering asylum claims from Zimbabweans. My blog post, Zimbabwean Asylum Claimants And The New Political Movement: Are The Home Office & Tribunal “Getting it?” of 24 August 2016, summarized the position in its opening paragraph as follows: