EU Citizens’ Appeal Rights under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020

Introduction

The European Union (Withdrawal Agreement Act) 2020 was made on 23 January 2020. On commencement only certain provisions came into force immediately include the power under section 11 for a Ministers to make regulations to provide for appeals against EU Citizens’ rights immigration decisions, see my Blog Post Statutory Magic and Appeal Rights for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill.

Since that time the pace of developments has moved at great speed. The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (the 2020 Appeal Regulations) were made on 27 January 2020 and came into force on exit day (31 January 2020 at 11pm).

Appeal Rights

The 2020 Appeal Regulations provide for rights of appeal against decisions relating to leave to enter or remain in the United Kingdom made by virtue of residence scheme immigration rules (e.g. under Appendix EU of the Immigration Rules/the Settled Status scheme), see my earlier blog on Immigration Rights of Entry and Residence for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill for further information about these appealable decisions. The decisions that may be appealed include decisions:

  • to vary (curtail) leave granted under the residence scheme immigration rules
  • to cancel leave granted under those rules
  • not to grant any leave to enter or remain in the UK in relation to an application for leave to enter remain made under the residence scheme immigration rules on or after exit day (11 pm on 31 January 2020)
  • not to grant indefinite  leave to enter or remain in relation to an application for leave to enter remain made under the residence scheme immigration rules on or after exit day (11 pm on 31 January 2020), where a person is granted limited leave to enter or remain or had such leave when the application was made.

 

Appeal rights capture a number of scenarios.  For example, a French citizen employed in a café may appeal against a refusal of any leave to enter or remain. So too may a self-employed Italian journalist who applies for Settled Status (indefinite leave) and who is only granted limited Pre-settled Status (limited leave).

The 2020 Appeal Regulations also provide for rights of appeal against decisions made  to revoke indefinite leave to enter or remain (granted by virtue of the residence scheme immigration rules) under section 76 of the Nationality, Immigration and Asylum Act 2002. This might happen where a person is liable for deportation but cannot be deported for legal reasons (for example it would breach their human rights), or where leave has been obtained by deception.

In addition, there are rights of appeals against decisions made in connection with scheme entry clearance (permission to travel to the UK) (e.g. under Appendix EU of the Immigration Rules/the Settled Status scheme) on or after exit day (11 pm on 31 January 2020), see my earlier blog on Immigration Rights of Entry and Residence for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill for further information about these appealable decisions. The appealable decisions are:

  • Where a person applies for scheme entry clearance on or after exit day and the application is refused
  • Cancellation or revocation or scheme entry clearance
  • Refusal of leave to enter (before arrival) where a person has scheme entry clearance
  • Cancellation or revocation of leave to enter the UK where a person has scheme entry clearance

There are also rights of appeal against decisions to make a deportation order made on or after exit day (11 pm on 31 January 2020), see my earlier Blog Post Restriction of Rights of Entry and Residence, and Deportation Criteria, for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill for further information about these decisions. The appealable decisions are where a decision is made to deport a person and that person:

  • Has leave to enter or remain in the UK granted under the residence scheme immigration rules (including a person who would have had leave but for the making of a deportation order), or
  • Is in the UK (whether or not granted entry) having arrived with scheme entry clearance

These appeal provisions do not apply to persons who are to be deported under the existing regime for deportation on public policy grounds for EU Citizens/EEA Nationals under the Immigration (European Economic Area) Regulations 2016 (for which separate provision  is made for appeals).

Forum

The 2020 Appeal Regulations provide for grounds of appeal to be made to the First-tier Tribunal, or to the Special Immigration Appeals Commission (SIAC) in national security cases and similar.

Grounds of Appeal

The First Ground of Appeal is  that the decision breaches any right of the appellant under:

  • Chapter 1 of the Withdrawal Agreement: All the main EU Residence Rights protected by the Withdrawal Agreement (Chapter 1) (e.g. for EU Workers, Self-employed, Permanent Residence holders, family members, etc.)
  • Articles 24(2) or 25(2) of the Withdrawal Agreement: rights deriving from the direct descendant (e.g. child) of an EU Citizen Worker or the Self-employed person, where the latter ceased to reside in the UK and the direct descendant is in education in the UK: the primary carerfor such a descendant has the right to reside in the UK until the descendant reaches the age of 18, and after the age of majority if that descendant continues to need the presence and care of the primary carer in order to pursue and complete their education
  • Equivalent rights for EEA Nationals, Swiss nationals, and their family members

The Second Ground of Appeal is that:

  • As regards decisions to (i) to vary (curtail) leave granted under the residence scheme immigration rules; (ii) to cancel leave granted under those rules, not grant leave in relation to an application for leave to enter remain made under the residence scheme immigration rules on or after exit day (11 pm on 31 January 2020); (iii) where a person applies for scheme entry clearance on or after exit day and the application is refused; (iv) cancellation or revocation or scheme entry clearance; (v) refusal of leave to enter (before arrival) where a person has scheme entry clearance; or (vi) cancellation or revocation of leave to enter the UK where a person has scheme entry clearance; the decision is not in accordance with the provision of the immigration rules by which it was made
  • As regard decisions (i) not to grant any leave to enter or remain in the UK in relation to an application for leave to enter remain made under the residence scheme immigration rules on or after exit day (11 pm on 31 January 2020); or (ii) not to grant indefinite  leave to enter or remain in relation to an application for leave to enter remain made under the residence scheme immigration rules on or after exit day (11 pm on 31 January 2020), where a person is granted limited leave to enter or remain or had such leave when the application was granted; the decision is not in accordance with the residence scheme immigration rules (e.g. Appendix EU to the Immigration Rules/ the Settled Status scheme)
  • A decision to revoke indefinite leave to remain under s 76 of the Nationality, Immigration, and Asylum Act 2002 is not in accordance with the relevant provision of that section of that Act
  • A decision to decision to deport is not in accordance with s 3(5) and 3(6) of the Immigration Act 1971 (concerning liability for deportation)

 

Matters to be Considered on Appeal  

Only certain matters may be considered on appeal and the procedure for regulating this aspect of appeals that is found in the Nationality, Immigration and Asylum Act 2002 is applied with adaptations. There are provisions for (s 120) statements of grounds relied upon, including where relevant grounds relating to the Refugee Convention, humanitarian protection, and human rights. Such a statement made be made before or after an appeal is begun.

On appeal the First-tier Tribunal (or SIAC in national security, etc. cases) must consider anything is thinks relevant to the substance of the decision under appeal, including a matter arising after the date of the decision.

There also provisions providing for new matters to be heard only with the consent of the Secretary of State in a similar way to the provision made for other appeals under the Nationality, Immigration and Asylum Act 2002.

Determination of Appeal

On appeal, the First-tier Tribunal (or SIAC in national security, etc. cases) must determine any matter raised as a ground of appeal or which it is otherwise required to consider.

Procedure

The 2020 Appeal Regulations adapt and apply certain procedural provisions applying to other immigration appeals before the First-tier Tribunal under the Nationality, Immigration and Asylum Act 2002. The also adapt and apply certain procedural provisions applying to other immigration appeals before SIAC under the Special Immigration Appeal Commission Act 1997.

Provision is also made to regulate pending appeals. Among the matters prescribed, an appeal is to be treated as abandoned where the appellant is granted leave to enter or remain under the residence scheme immigration rules; though this does not apply to those only granted limited leave/Pre-settled Status or whose indefinite leave is cancelled or revoked, where the appellant gives notice under the relevant rules that they wish to appeal. Further, an appeal is not to be treated as abandoned solely because the Appellant leaves the UK.

Appeals may be brought form within the UK or outside it. But restrictions are placed on national security cases.

There are also restrictions where a decision has beeb made to deport a person and the Secretary of State certifies that removal would not breach human rights protection under the Human Rights Act 1998.  The ability of the Secretary of State to certify a case so that removal may proceed notwithstanding an appeal is circumscribed by procedural protection derived from EU law standards.

And where a case is so certified, the 2020 Appeal Regulations also make provision for a person outside the UK to be admitted to the UK on immigration bail so that they may make submissions in person in connection with an appeal. The provisions for admitting a person for a hearing is the same as currently found in the Directive 2004/38/EC, and a person must be admitted unless their appearance ‘may cause serious troubles to public policy or public security’.

The Time for Appealing

Where the appellant is in the UK, the 2020 Appeal Regulations make provision for a Notice of Appeal to be received by the First-tier Tribunal not later than 14 days after the appellant is sent the original Notice of Decision. If the appellant is outside the UK, the period is 28 days. However, a person may choose first to seek an Administrative Review  of an EU Citizen’s rights immigration decision under Appendix AR (EU) of the Immigration Rules,  in which case the time limit for appealing to the First-tier Tribunal is  the 14  days after being sent the Administrative Review decision where in the UK,  and 28 days where outside it. Thus, a person may choose whether to go straight to appeal to the First-tier Tribunal or to have an Administrative Review by the Home Office first.

2 comments

  1. […] Section 109 of the Nationality, Immigration and Asylum Act 2002. This is the provision that provides a power to make regulations about appeals against immigration decisions in respect of persons having, or claiming to have, EU rights. At present an EU citizen or their family member claiming EU rights may appeal to the First-tier Tribunal against an immigration decision on that basis. No more. NB this does not affect persons seeking to appeal against rights protected under the EU-UK Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020, see my blog post EU Citizens’ Appeal Rights under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulation…. […]

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