In Munday (EEA decision: grounds of appeal)  UKUT 91 (IAC) the tribunal has reiterated that in appeals against EU residence decisions, the appellant cannot rely on human rights arguments, only on EU law arguments.
The official headnote:
1. 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).
2. Consequently, in such an appeal an appellant may not rely on human rights grounds in the absence of a s.120 notice and 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.
Comprehensive examination of law, policy and practice around the "Surinder Singh route" including hints and tips on avoiding problems. Foreword by Sonel Mehta of BritCits.View Now
I’m not sure the judges are right on one very important aspect, though.The facts of the case involved the Surinder Singh route. The British citizen sponsor worked for the European Commission from 2008 to 2012 in Belgium and worked in Belgium again from 2012 or 2014 to 2015. Previous Surinder Singh applications were refused and it was now seemingly common ground that these decisions had been unlawful. The appellant had left the EU, seemingly briefly, in 2017. She made another Surinder Singh application, this time for entry, and it was refused again — this time partly because the couple had not immediately before entry been residing together in an EU member state.
Surely the correct analysis is that the appellant had always, irrespective of what the EEA Regulations say, enjoyed Surinder Singh rights since 2012 and/or 2015 and was still even now entitled to entry and indeed a residence card on that basis? The residence card is merely declaratory of Surinder Singh rights. Paragraph 96 of the determination would therefore be wrong: the decision under appeal was to refuse entry to a person who in truth enjoyed a right of entry under EU law and had done for some time.
It is hard to image a stronger Surinder Singh case, in fact. It is always difficult when commenting on someone else’s case but if this is right, I hope this case goes further.