Secretary of State for the Home Department v Zain-Al-Abidin Abdullah

Prior to the United Kingdom leaving the EU, citizens of the member states (and their families as defined) were entitled to move to and reside in the United Kingdom under article 20 of the TFEU, so long as they did so within the limitations provided for in articles 21, 45 and 49 TFEU. Those rights were set out primarily in the Citizens’ Rights Directive (Footnote: ³).

We observe that the right of free movement was not absolute; it is tied primarily to economic activity, that is, the exercise of Treaty Rights. That can be seen from Dano v Jobcentre Leipzig [2014] EUECJ C-333/13 at [71] and in article 7 (1) of the Citizens’ Rights Directive. It is also evident from article 14 of that Directive that those who cease to meet the requirements can be removed, although not automatically. The position is different for those who had acquired the permanent right of residence.

A distinction is drawn in the Citizens’ Rights Directive between expulsion per se and an exclusion order (or ban on entry – see article 15 (1) of the Citizens’ Rights Directive); on an analogy, in domestic law terms, that is the distinction between removing an individual and the imposition of a deportation order.

It follows from this that EU nationals may have been living in the United Kingdom prior to 31 December 2020 but may not have had a right of residence under EU law. That was the situation in Dano where Ms Dano, a Romanian national, had no right of residence in Germany.

We pause at this point to note that, as Ms Smyth explained, EU nationals who had simply resided in the United Kingdom, without not necessarily exercising Treaty rights, are entitled to status under the EUSS.

We accept that, as Ms Sabic and Mr Buley submitted, the WA has effect in domestic law by operation of section 7A (2) of EUWA 2018.

The SSHD submits that the WA in terms of personal scope is confined to those who had resided “in accordance with Union Law”. As a result, and consistent with the sixth recital, not all EU nationals fall within the scope of the Withdrawal Agreement and the rights it confers, in particular the protection conferred by Article 20.

Ms Sabic for Mr Abdullah and Mr Buley for the AIRE centre submitted that it was not necessary for an individual to have been exercising Treaty Rights in order to qualify for the protection given by Article 20.

We are not persuaded that the creation of the EUSS, a scheme that covers those not within the scope of article 10 of the WA, alters the provisions of the WA. We do not accept that is the effect of article 13 (4), following Celik.

We do not accept either Mr Buley’s submission that article 10 can be construed such that “exercised their right to reside in the United Kingdom in accordance with Union Law…” includes a person who had an enforceable right not to be removed. That is simply inconsistent with the Union law as set out above.

We are not persuaded either that the safeguards set out in articles 20 and 21 of the WA are applicable to those not within the scope of article 10. That submission is contrary to the express wording of article 10.1, the limitation in article 20.1 and the express reference to article 10 in article 21.

It is sufficiently clear from the structure of the WA that it continues the rights of those who fall within scope prior to them acquiring status pursuant to article 18, pending a decision on a timely application. We acknowledge that the Secretary of State takes the view that the protections flowing from article 18.3 apply to those who have made applications, even late. That is, we accept, a reasonable interpretation; the alternative – that those who made late applications did not have the rights conferred - would be contrary to the reference to “any application” within 18.1 which is not qualified by any reference to time. But, we do not accept that this interpretation or the Secretary of State’s practice and guidance means that those who do not come within the scope of article 10 are, if they make an application, brought within scope of the WA. To do so would be to ignore the purpose of the procedure as set out in article 1 (a) which is to verify an entitlement to the residence rights set out in Title II which, as we have seen, is limited to those who had residence rights immediately before 31 December 2020.

Despite the submissions made, we do not consider that article 18.3 has the effect of applying articles 20 and 21 to all those who have made an application for a new residence status. First, this article comes within the ambit of article 10.1. Second, it is permissive; it allows a member state to require those who reside in accordance with the conditions set out in that title to apply. It does not state that any scheme put in place must apply only to those meeting the scope of article 10 (and the EUSS is wider). Further, it would make no sense for those out of scope of article 10 due to a lack of prior exercise of Treaty Rights to be granted rights in those states which do have a constitutive scheme like the EUSS but not in those states which do not have such a scheme. That it is open to a member state to operate a scheme more generous than that provided for in the Withdrawal Agreement does not operate to alter the wording of that agreement, whatever the position may be in domestic law. As was noted in R (Independent Monitoring Authority) v SSHD [2022] EWHC 3274 (“IMA”) at [134]

Thus, the rights conferred by article 20 and 21 of the WA apply only to those within the scope of article 10 and those to whom article 18 extends those rights. In any event, we are not persuaded that any practice of the Secretary of State or the Immigration Rules is capable of altering the effect of the WA.

We turn next to the position under domestic law. At the outset, we observe that the EUSS is a constitutive scheme; the rights under it flow from the grant of status, unlike EU law rights of free movement where the documents issued only confirmed rights conferred by operation of law. That being so, it was necessary to provide protection of those free movement rights for those moving from EU free movement rights which ended on 31 December 2020 to rights granted under EUSS, hence the Grace Period Regulations which are necessary to comply with article 18 of the WA.

It follows also, as a matter of logic, that in the context of deportations, convictions in respect of conduct up until 31 December 2020 may not occur until well after that date, and in respect of persons who either had or did not have rights under the WA, and who may have been granted leave under the EUSS prior to conviction, or have a pending application at that point; or, may simply not have applied at that point.

We accept that, as Ms Smyth submitted, the effect of the EUSS as it is structured is that reg 27 of the EEA Regulations is applied by operation of the definition of “deportation order” as set out in Annex 1 to Appendix EU. We accept also that whether that test is met is a matter to be considered on appeal.

As noted above at [21] to [25] the EEA Regulations continued to apply, subject to modifications, to a “relevant person” during the “grace period”, the latter being from 31 December 2020 to 30 June 2021. That is by operation of reg.3 of the Grace Period Regulations. They also apply (reg 4) to a person who made an application within the grace period and apply while that application is pending, that period extending until a final decision on appeal is made.

It is thus necessary to consider whether the residence relied upon, be that residence immediately before 31 December 2020, or the residence necessary to acquire permanent residence, falls within these provisions. If that is not the case, then the individual is not a “relevant person” for the purposes of the Grace Period Regulations, or possibly section 3 (5A) of the 1971 Act. In doing so, attention must be paid to the definition of continuous residence – see [25] above.

In addition, as noted above at [27] to [29], the EEA Regulations may apply by operation of the CRRE.

Ms Sabic and Mr Buley submitted that the Secretary of State was wrong to apply the automatic deportation regime to ZA, given the effect of article 18.3 and section 3(5A) of the 1971 Act.

Ms Sabic submitted that s3(5A)(b) applies article 18.3 to all those who have made applications, and that this supports her argument as to the scope of article 18, given that it is part of domestic law. In interpreting the effect of section 3(5A)(a), it is necessary to step back and consider what article 20 says. It sets out broad principles, but it is article 21 that applies those principles to an individual and it is that structure which is replicated in section 3(5A)(a) and (b). Section (5A)(b) cannot be interpreted as covering those who are not relevant persons either within section 3(10) or by operation of the Grace Period Regulations, relevant persons being those who were lawfully resident and who made timely applications. In effect, section 3(5A) (a) gives force to article 20 and section 3(5A)(b) gives force to article 21.

There is an apparent tension between the automatic deportation regime under the 2007 Act and the provisions of the 1971 Act. Under section 3(5)(a) of the 1971 Act the SSHD has a discretion to deport someone if he considers it conducive to the public good. That requires an evaluation of that issue first. Section 3(5A) of that Act prevents the SSHD from deeming a deportation to be conducive to the public good if it would be contrary to articles 20 and 21 of the WA, that is, the EU deportation provisions.

In contrast, the regime under the 2007 Act imposes a duty on the SSHD to deport foreign criminals (see [34] above). Section 32(4) of the 2007 Act deems the deportation of a foreign criminal to be conducive to the public good. Not all EU nationals convicted of offences would meet the definition of foreign criminal, although in practice it is unlikely that the Secretary of State would seek to deport such persons. Section 32(4) is, however disapplied if Exception 7 applies. But, the application of that exception does not prevent the making of a deportation order.

The effect of this scheme is that once the Secretary of State has considered whether an exception applies, and concludes that it does not, he does not need to consider whether deportation is conducive to the public good and is then under a duty to make a deportation order.

In the cases of ZA and AS, a two-stage process was operated. A decision to make a deportation order was made, and submissions invited as to why a deportation order should not be made. The SSHD then made an order, having concluded that none of the exceptions were met. Implicit in that is a finding that deportation was justified by reference to the EU deportation regime as set out in the EEA Regulations as preserved and as provided for in article 20 and 21 of the WA.

We do not accept the argument that the making of a deportation order against an EEA national is contrary to the WA or for that matter the Citizens’ Rights Directive. It is evident from the scheme enacted in Chapter VI of the Directive (and in particular article 31.4) that an expulsion decision can be taken before an appeal. If the appeal is successful, then the deportation order is revoked whereas if the decision under appeal was simply a decision to make a deportation order, then the order is not made.

In our experience, it was formerly the SSHD’s practice to make a decision to deport an EEA national giving rise to a right of appeal but more recently, the SSHD has followed the process under the 2007 Act whereby a deportation order is issued and then the appeal follows.

Further, where there is no deportation decision taken under the EEA Regulations as preserved, and there is consideration under the EUSS rules, the means by which “deportation order” as defined in the EUSS has the effect of requiring the SSHD to consider whether the deportation is justified by reference to reg. 27 of the EEA Regulations has to be applied in respect of pre-31 December 2020 conduct of EEA nationals. That applies also to those not within the scope of the WA but within scope of the EUSS. We are satisfied also, that the ground of appeal under the CRA Regulations permits that issue to be considered by a Tribunal and a finding reached as to whether an appellant’s deportation is justified by reference to reg 27 of the EEA Regulations.

We do not accept Mr Buley’s submission that there is in substance, any breach of the principle of equality in how the Secretary of State has dealt with cases either under the EEA Regulations or under the EUSS; in both cases the relevant tests under the EEA Regulations were applied.

The arguments he advances come down to sequencing. We accept that there will be cases where an application under EUSS is made late and after a deportation order was made. But, if such a person was at the time of the deportation decision out of scope of the WA, that cannot be faulted. The making of an application under the EUSS cannot retroactively make such a decision unlawful, and the EUSS as properly understood requires an evaluation of the deportation order in question by reference to the Chapter VI of the Citizens’ Rights Directive.

As stated above at [53], paragraph 6(1)(cc) sets out the rights of appeal applicable to different categories. Thus, in an appeal against a decision taken under the EEA Regulations after 31 December 2020, the ground of appeal under section 84 of the Nationality, Immigration and Asylum Act 2002 (as inserted by the EEA Regulations) is whether an appellant's rights under the EEA Regulations as continued in force either by the Transitional Provisions Regulations or by the WA are breached.

As noted above at [55] a decision under the EUSS can be appealed on two grounds: that the decision is not in accordance with the EUSS rules or is contrary to the WA.

The ground of appeal in the case of a human rights decision is as set out in section 84 of the 2002 Act.

It is not in dispute that in an appeal raising article 8 of the Human Rights Convention a judge must adopt the five-step approach set out in Razgar [2004] UKHL 27 The focus of the submissions we heard was on the fourth question: is the decision in accordance with the law? As noted above at [9] this is an issue on which we received further submissions.

In her skeleton argument and in oral submissions before us, Ms Smyth for the Secretary of State submitted that whether a decision was “in accordance with the law“ is to be decided in line with R(Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058 where the Court of Appeal set out [55] a statement of the principles:

The Divisional Court set out the general principles on this issue at [80]:

We pause here to note that it does not appear from the judgment in AA(Poland) that this case or indeed any others on this issue were cited, nor does there appear to have been argument on the point.

In her oral submissions to us, Ms Smyth submitted that, applying those principles, and as Charles (Human Rights Appeal; scope) [2018] UKUT 00089 confirmed that the principles of United Kingdom deportation law met the relevant test, on no proper view could it be argued that the deportation decisions in the cases of either ZA or AS were not in accordance with the law.

In her initial submissions, Ms Sabic submitted that the question of whether the decision to deport him was “in accordance with the law” required consideration not just of whether there is adequately accessible and sufficiently precise domestic law but that the test encompasses the requirement for a public authority to act in compliance with domestic law.

Mr Buley submitted that the WA is part of domestic law by operation of section 7A EUWA 2018, and that a deportation order will only be in accordance with the law if it does not breach the rights granted by the WA.

Since we heard these submissions the Court of Appeal has handed down AA (Poland) where Warby LJ held [67]:

And, at [71] to [72]:

It is submitted by ZA, AS and the AIRE centre, that a finding that a deportation decision is contrary to the EEA Regulations, and by extension the WA, will result in a finding that it is “not accordance with the law” and thus any article 8 appeal will succeed on that basis, it being unnecessary to consider proportionality within article 8. It is further submitted that this will also be the case where there is a finding in an appeal under the CRA Regulations that the decision was not in accordance with the relevant Immigration Rules.

While the Court of Appeal in AA (Poland) did not make express reference to the principles set out in Bridges we have no hesitation in concluding that they must have borne them in mind. We accept, also that the Court of Appeal did not consider the position where there is no appeal under the EEA Regulations. It does not decide what the position would be if there had been an appeal under the CRA Regulations.

In that context, we pause here to remind ourselves of the consequences of the finding that a decision to deport is contrary to the EEA Regulations, the WA or the EUSS. In doing so, we note Ms Smyth’s acceptance before us that the consequence would be that the person who was successful in such an appeal would be that the deportation order would be revoked, and leave granted under the EUSS at which point the person in question would be a relevant person for the purposes of Exception 7 under section 33 of the 2007 Act and section 3(5A) of the 1971 Act. The effect of Exception 7 differs significantly from Exception 1 (Footnote: ⁴) in the effect it has on section 3(5)(a) of the 1971 Act and whether a deportation is conducive.

We remind ourselves also of the difficulty posed by sections 117A to 117D, and in particular, 117C of the 2002 Act, as identified in AA (Poland). Unlike the situation in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109, where a foreign criminal is involved, the policy as set out in the statute, is that they should be deported. Even were that overcome, an anomalous situation arises whereby, if the appeal is allowed on EEA Regulations Grounds ( or under the CRA Regulations when leave is granted) Exception 7 would apply and all that flows from that, but if Exception 1 applies, as a result of allowing the appeal on human rights grounds, with a different result as to the conduciveness of deportation. This situation would be all the more anomalous were the EEA Regulations test to be considered as part of an assessment of proportionality in considering the fifth Razgar question that it is necessary to consider whether the requirements of the immigration rules are met.

Taking all of these factors into account and applying the principles set out in Bridges, we consider that because of the particular nature of the two deportation regimes, that it flows from a finding that a deportation decision is contrary to the EUSS rules because it is not justified by reference to reg. 27 will result in a finding that it is “not in accordance with the law” and thus any article 8 appeal would succeed on that basis. This should not, however, be understood as applying to those situations where other provisions of the Immigration Rules are met; that still requires an assessment of proportionality in line with TZ (Tanzania).

In the light of this, there is all the more reason why any appeal under section 82 should be stayed pending a decision on any EUSS claim then under consideration.

Pausing there to take stock, we consider that the following principles apply:

We then turn to the specific cases.

As noted in the Error of Law decision, ZA’s case is that he had acquired permanent residence in accordance with the EEA regulations, prior to 31 December 2020, and that he had applied under the EUSS on 30 June 2021, and thus within the time limit. He was asked to provide evidence of his status, his solicitors replying to that request on 15 November 2021. On 3 May 2022, the Secretary of State signed a deportation order pursuant to section 32(5) of the 2007 Act, refused his human rights claim and refused his application under the EUSS, having not accepted that he had been resident in the United Kingdom for a continuous period of five years and had so not acquired permanent residence, nor was he satisfied that he had been lawfully resident immediately prior to 31 December 2020. He was not satisfied either that ZA met the suitability requirements as he was subject to a deportation order, concluding also by reference to reg 27 of the EEA Regulations that this was justified.

The judge found that ZA had not acquired permanent residence; that the decision to refuse the EUSS application was correct; and, nonetheless, deportation was disproportionate in article 8 terms.

Judge Kebede set that decision aside in its entirety, observing at [22] that the legal position was unclear.

In this case there were two rights of appeal: one under the 2002 Act against the decision to refuse the Human Rights claim consequent on the deportation order; and, the other under the CRA Regulations against the decision under the EUSS.

Applying the reasoning set out above, the correct sequence should have been to consider, in the context of the EUSS decision, whether ZA’s conduct was such that his deportation was justified by reference to reg 27 of the EEA Regulations. That will require first a consideration of when or if he was exercising Treaty Rights (and whether he had acquired permanent residence) prior to 31 December 2020. If either of those were made out, then he would come within the scope of the Withdrawal Agreement. If he does not meet either of those conditions it is necessary to ask whether he was resident prior to 31 December 2020 and if that is so, was it for a continuous period of 5 years. If either of those is correct, then he falls within the EUSS. And, if he had acquired 5 years continuous residence, he benefits from enhanced protection.

Once those facts have been established, and decision made on the deportation issue, and thus on the EUSS appeal, then the section 82 appeal will need to be considered as ZA has rights of appeal under both.

While we accept that it may follow from the findings as to exercise of Treaty Rights that ZA fell within the scope of the WA, and that a decision should have been made under the EEA Regulations, that makes no material difference to the conduct of the appeal as the test would be the same.

We accept that the section 82 appeal will involve a consideration of whether the decision was “in accordance with the law” as part of the five-step process set out in Razgar [2004] UKHL 27. In the light of our findings, the appeal under section 82 would fall to be allowed on that basis, if ZA succeeds under the EEA Regulations.

Turning then to the list of issues in this appeal, we answer them as follows:

The following issues therefore need still to be determined:

The directions as to how the appeal will proceed are set out below.

On 14 October 2020, Mr Szuba was convicted on a guilty plea of possession with intent to supply Class A drugs for which on 28 January 2021 he was sentenced to 5 years and 3 months’ imprisonment. On 23 October 2021, the Secretary of State took a decision to deport him pursuant to the Immigration Act 1971 as he was a foreign criminal and none of the exceptions set out in section 33 of the 2007 Act applied. His then solicitors wrote to the Secretary of State on 9 November 2021, submitting that the decision should have been taken pursuant to the EEA Regulations, not domestic law. The Secretary of State replied on 7 March 2022, seeking evidence that he had made an EUSS application in February 2020 as claimed.

On 23 May 2022, the Secretary of State, having treated AS’s representations as a human rights claim, refused it, giving rise to a right of appeal, and serving on him a deportation order dated 23 May 2022.

On appeal, the judge noted at [8] that AS appealed on the basis that his case is governed by the EEA Regulations, recording at [10] that he had confirmed with the representatives that the appeal is governed by those regulations.

The judge directed himself at [16] that by operation of the CRA regulations at reg. 7 the substantive law governing the appeal is the EEA Regulations. Having heard evidence and submissions, the judge went on to find:

The Secretary of State sought permission to appeal on the grounds that the judge had erred as he:

Permission to appeal was granted on 24 February 2023.

In his response pursuant to rule 24, AS avers that the judge did not err in his approach to the law, and that if he did, it was immaterial, observing at [13] that the Secretary of State had not challenged many relevant findings. It is also averred that the judge had, having had regard to all the evidence, given sufficient reasons for concluding that AS had made an application under the EUSS in February 2020.

The relevant issues in this appeal were agreed.

The decision under appeal was a human rights decision and thus the right of appeal was under section 82 of the 2002 Act. There was no decision under the EEA Regulations or under the EUSS and so there was no appeal under the CRA or the EEA Regulations. On that basis, the FtT made a significant error [16] in concluding that the substantive law governing the appeal was the EEA Regulations, an error compounded at [17]. Even had AS made an application under the EUSS in February 2020, there was no decision under those regulations which gave rise to an appeal.

In the circumstances, we agree with Ms Smyth that the judge should have considered the appeal under section 82 (1) of the 2002 Act. He did not do so. Had he applied the five-step Razgar analysis, then he would have had to consider whether the decision was in accordance with the law, before considering whether it was proportionate. He did neither.

Whether that error was material turns primarily on whether the judge erred in finding that AS had made an application under the EUSS in February 2020. It is to that issue that we turn next.

With regard to the finding that AS had made an EUSS application in February 2020, we remind ourselves that as an appellate tribunal we should be reluctant to overturn a finding of fact made by a lower tribunal.

AS’s evidence is that he had made an application for settlement at the same time as his mother and stepfather in February 2020, a point put to the Secretary of State in representations made on 9 November 2021. On 7 March 2022, he wrote to AS’s solicitors seeking further information about that application. There is no indication in the bundle that there was a response to that letter, and in its Notice of Decision dated 23 May 2022, the Home Office stated [2] that AS had not provided documentary evidence of his application, nor that he had an outstanding application to the EUSS. There is, however, an email dated 7 June 2022 from AS’s stepfather, stating that they do not have the confirmation email as Yahoo mail deletes the account after 12 months’ inactivity. That email address is not specified. There is, further, an email from UK Visas sent Wednesday 15 June (presumably 2022), stating that they had closed a UK Visas and Immigration account registered to that address as a result of a phone call and that as a result, any applications linked to that account were deleted.

It appears from the Certificate of Application dated 11 July 2022 that AS had made an application under the EUSS on 30 June 2022.

There is no mention in AS’s Witness statement of having made any application. The judge summarised his evidence as follows:

Here, there was no documentary evidence that an application under the EUSS had been made. The email from the Home Office states simply that any application that had been made would be deleted which is not confirmation than an application had been made. On a proper analysis, it is the oral evidence, not the documents that indicate an application had been made then deleted.

Further, as Ms Smyth submitted, the judge does not engage with the letters from the Secretary of State which concluded that there was no evidence of an application being made. We accept that the Secretary of State’s representative did not suggest that AS was not a credible witness (see decision at [28]) but it was still for AS to prove on the balance of probabilities that he had made an application in February 2020.

We do not consider that the reasoning in this case is adequate in the circumstances of the case, given the lack of any documentary evidence that an application was made and we note this is a case in which it is said that it was received but can no longer be found. AS’s solicitors wrote to the Home Office on 9 November asking them to check their records. But the judge did not engage with this, or why the Home Office could find no record of the application.

Accordingly, we find that ground 2 is made out, and the finding that AS had made an application under the EUSS in February 2020 is unsustainable.

We accept that, in considering a human rights appeal under section 82 of the 2002 Act, it will be necessary, following Razgar to consider whether the decision was in accordance with the law, and whether the requirements of the Immigration Rules (including EUSS) had been met, that being relevant to proportionality. Here, having directed himself wrongly according to the law, and having reached an unsustainable finding of fact as to the making of an EUSS application, the judge did not address the issue of proportionality with reference to the law applicable to human rights appeals. Taking these factors together, we conclude that the error was material, given the fundamental error in approach to the relevant law.

For these reasons, we answer the issues raised in AS’s appeal as follows:

We have given directions for the remaking of this appeal below.

RR did not attend the hearing, nor was he represented. The panel is still unaware of any explanation for this. We are, however, satisfied that he was given due notice of the time, date and venue of the appeal and in all the circumstances of the case, we were satisfied that, bearing in mind the overriding objective, it would be fair and in the interests of justice to proceed to determine the appeal.

On 21 January 2020, RR was granted indefinite leave to remain under the EUSS. On 13 July 2022 he was sentenced to 2 years imprisonment in respect of acquiring, using, or possessing criminal property an offence with a start date of 12 October 2021. He was at the same time sentenced to a month’s imprisonment in respect of each of two counts of possession of a prohibited weapon, all three sentences to be served concurrently.

On 9 August 2022, the Secretary of State wrote to RR, informing him that she had decided to make a deportation decision against him as a foreign criminal, pursuant to the 1971 Act and the 2007 Act as he had not shown that any of the exceptions set out in section 33 of that Act applied to him. He was also informed of his right of appeal under reg. 6 of the CRA and of the possible grounds of appeal.

In his grounds of appeal, RR, said that the deportation order breached his right to private and family life under article 8 of the Human Rights Convention, and that his deportation is not conducive to the public good.

On 17 October 2022, RR was served with a section 120 notice. On 25 October 2022, his solicitors wrote to the Secretary of State, explaining that he has lived in the United Kingdom since 2005, has a subsisting relationship with his partner who has ILR and that they have two British Citizen children.

RR’s appeal was heard on 8 February 2023. In a decision dated 14 February 2023, the judge set out reg 27 and parts of Schedule 1 to the EEA Regulations and gave a self-direction with respect to article 8 of the Human Rights Convention. At [16] and [17], the judge wrote this:

The judge concluded at [22]:

The Secretary of State sought, and was granted permission to appeal on the grounds that the judge had erred by :

Permission to appeal was granted on 29 March 2023.

As with any appeal, the starting point for any consideration is the decision made. In this case, it is a decision to make a deportation order pursuant to section 5 (1) of the 1971 Act which, by operation of reg. 6 of the CRA Regulations grants a right of appeal on the grounds set out in reg. 8 of those regulations.

The decision is manifestly not a decision under the EEA Regulations, and it is not a refusal of a human rights claim. Although, arguably, the grounds of appeal do raise such a claim, there is no decision on that issue. That said, the human rights issue was raised in response to a section 120 notice, and is thus potentially a new matter. The decision under appeal is not, however, a human rights decision for the purposes of section 113 of the 2002 Act.

Mr Buley had nothing to say about whether the decision in this case involved the making of an error of law but relied on his skeleton argument, arguing that by operation of section 7(1) of the Human Rights Act, the First-tier Tribunal had the jurisdiction to consider the compatibility of the Secretary of State’s actions, and to consider if the actions were unlawful in terms of section 6 of that Act.

Regrettably, we conclude that the judge’s decision in this appeal was fundamentally misconceived. There is no reference to the CRA Regulations, nor any indication why, wrongly, it was thought that the EEA Regulations were relevant given that they had been revoked. Given that the criminal conduct that gave rise to the decision post-dated 31 December 2020, RR could not benefit from the protections offered by article 20 of the WA. Similarly, at best, the raising of human rights issues was a new matter, an issue not addressed, and the correct procedure was not followed; there was no written consent to the issue being raised and so as a matter of law, it could not be considered.

We turn next to section 7 of the Human Rights Act which, materially provides:

RR cannot rely on sub-section (1)(a) because it is restricted to the "appropriate court or tribunal", defined in subsection (2) to mean "such court or tribunal as may be determined in accordance with rules…". The only tribunals upon which section 7(1)(a) jurisdiction has been conferred by rules are the Special Immigration Appeals Commission and the Proscribed Organisations Appeals Commission. No provision has been made for the First-tier Tribunal. 

In R (A) v B [2009] UKSC 12 the Supreme Court addressed that subsection, and how it differs from sub-section 1 (a). Lord Brown held [45]:

It is perhaps surprising that the AIRE Centre’s submissions on section 7 simply do not engage with this decision or R v Kansal, let alone seek to distinguish Supreme Court authority. Section 7(i)(b) operates as a shield, not a sword. There is thus no question of any rights under section 7 being infringed by the CRA.

It follows from this that the decision of the First-tier Tribunal involved the making of an error of law, as the judge applied the wrong law, and failed to identify the relevant legislation under which the appeal could be brought, nor did he identify the relevant ground of appeal. On that basis alone, it must be set aside. Further, there is no arguable basis on which he could have considered whether the deportation decision was a disproportionate interference with Mr RR’s article 8 rights.

Accordingly, we answer the issues raised in RR’s appeal as follows:

We therefore set it aside, and remit the appeal to the FtT as it will be necessary to remake the decision. In doing so, we note Ms Smyth’s request that the human rights claim raised under the section 120 notice should be considered by the First-tier Tribunal.

The three appeals are to be de-linked and will be remade in separate hearings. We therefore set out below separate directions in respect of each appeal.

The appeal will be listed to be remade in the Upper Tribunal on a date to be fixed.

The Upper Tribunal will need to determine whether ZA had been residing in the United Kingdom as at 31 December 2020, if so for what continuous period; whether he had acquired permanent residence prior to then; and, the extent to which he had been exercising Treaty Rights prior to 31 December 2020. It may also need to determine whether ZA was continuously resident after 31 December 2020, and on what basis.

The parties are therefore directed to prepare and serve 10 working days before the next hearing in electronic form:

Skeleton arguments are to be exchanged 5 working days before the hearing

The appeal will be listed to be remade in the Upper Tribunal on a date to be fixed.

A CMR will be held prior to that to determine what findings made by the FtT can be preserved, and to determine whether the appeal should be stayed pending a decision on AS’ EUSS application.

The Secretary of State has stated in his email of 14 February 2024 that: “Mr Rudokas’ human rights appeal can be dealt with by the FTT as a new matter in his existing appeal under the CRA Regulations as provided for in regulation 9.

In the circumstances, we remit RR’s appeal to the First-tier Tribunal for a fresh decision on all issues.

For the Home Office (pursuant to para. 27(a)(i) of the UT’s decision): the SSHD to provide “confirmation of the relevant decision made in relation to the appellant’s deportation, given the apparent inconsistency between the documents at Annex K and M of the Home Office bundle, both dated 3 May 2022.”

What are the relevant rights of appeal arising from the SSHD’s decision?

In respect of A’s appeal under s.82 of the 2002 Act:

In respect of A’s appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the Appeals Regs”):

What is the source and scope of S’s right of appeal to the FTT?

In light of the above, did the FTT err in deciding, for the reasons it gave at [16]-[17], that the substantive law governing S’s appeal was the Immigration (European Economic Area) Regulations 2016 (“2016 Regs”), as saved?

If so, is the error material such that the FTT decision is required to be set aside and re-made?

Did the FTT materially err in deciding that S had made an application under the EUSS in February 2020?

Did the FTT give adequate reasons for its finding of fact that S made an EUSS application in February 2020?

Without prejudice to the above, in deciding the appeal additional potential issues are:

What was the scope of R’s right of appeal against the decision of 9 August 2022?

In light of the above, did the FTT have jurisdiction to decide the appeal by reference to the test for removal on public policy grounds under the Immigration (European Economic Area) Regulations 2016? If so, on what basis?

If, which is unclear, the FTT decided the appeal on Article 8 grounds, did the FTT have jurisdiction to determine the appeal on that basis, and if so, why?

If the answer to that question is yes, did the FTT nonetheless materially err in its approach to Article 8, in particular because:

Did the FTT give proper reasons for its decision?