Case No. UKUT-00124-(IAC)

of the Nationality, Immigration and Asylum Act 2002 to be treated as abandoned where an appellant was issued with documentation confirming a right to reside in the United Kingdom under EU law. Following the changes to the 2002 Act brought about by the Immigration Act 2014 that abandonment provision was revoked and never replaced. ii. There has never been provision under any of the EEA Regulations for an appeal against an EEA decision brought under those Regulations to be treated as abandoned following a grant of leave to remain or the issuance of specified documentation confirming a right to reside in the United Kingdom under EU law. iii. It follows that a grant of leave to remain following an application under the EU Settlement Scheme does not result in an appeal against an EEA decision brought under the 2016 EEA Regulations being treated as abandoned. DECISION AND REASONS Introduction 1. Must an appeal brought under the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052 - “the 2016 Regulations”) against an EEA decision be treated as abandoned following a grant of leave to remain to the appellant? 2. The position originally adopted by the Respondent in answer to this question was “yes”. However, she now concedes that this is not the case and that there has never been a legislative mechanism for an appeal brought under the 2016 Regulations or their predecessors to be treated as abandoned following a grant of leave to remain or the issuance of documentation confirming a right to reside under EU law. 3. In addition, the Respondent accepts that the First-tier Tribunal erred in law when dismissing the Appellant’s appeal, and that the decision should be remade and the appeal allowed. Consequently, the substance of this appeal can be dealt with in fairly short order. However, the jurisdictional question of abandonment requires a little more exploration to determine whether the Respondent’s concession is correct . 4. In undertaking this exercise, we shall refer to the 2016 Regulations, the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003 - “the 2006 Regulations” ), and the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326 - “the 2000 Regulations). The three sets of Regulations shall be referred to collectively as “the EEA Regulations”. Relevant background 5. The Appellant, a Tunisian national, appeals against the decision of First-tier Tribunal Judge Cassel (“the judge”), promulgated on 15 July 2019, by which he dismissed the Appellant’s appeal against the Respondent’s refusal to issue him with a permanent residence card under the 2016 Regulations. 6. In 2013 the Appellant married a Spanish national and was issued with a residence card under the 2006 Regulations. The relationship subsequently broke down, divorce proceedings were initiated on an unknown date in November 2016, and a decree absolute was issued in April 2017. A further residence card was issued to the Appellant, this time based upon his retained right of residence. The application for a permanent residence card was made in October 2018 and refused by the Respondent on 12 December 2018 on the ground that there was insufficient evidence of the ex-spouse’s employment during the period relied on by the Appellant. The Appellant appealed to the First-tier Tribunal . 7. The Appellant then applied for settled status under the EU Settlement Scheme (as provided for by Appendix EU to the Immigration Rules). On 22 May 2019 he was granted Indefinite Leave to Remain (“ILR”). 8. Apparently unaware of the grant of ILR and no jurisdictional issue having been raised by either party, the judge proceeded to dismiss the appeal on the basis that the Appellant had failed to demonstrate that he had been “exercising Treaty rights” as a “qualified person”, and that there was insufficient evidence of the ex-spouse having worked for five years prior to the divorce. 9. Following the grant of permission, the Respondent provided a rule 24 response, in which it was asserted, for the first time, that the grant of ILR meant that the Appellant’s appeal should be treated as abandoned. The Appellant refuted this, but in further correspondence the Respondent maintained her original position. 10. At the hearing on 13 January 2020, Mr Avery accepted that the judge had erred in law and that the decision should be remade and the appeal allowed. However, these concessions would be immaterial if the grant of ILR to the Appellant resulted in his appeal being treated as abandoned prior to the hearing before the judge. On this issue , Mr Avery requested additional time in which to provide a considered response on behalf of the Respondent. In all the circumstances, we acceded to this. 11. Mr Deller subsequently filed and served concise written submissions, for which we are grateful. These set out the concession summarised in paragraph 2, above. Abandonment: two key matters 12. In determining whether an appeal is to be treated as abandoned, it is first important to identify the legal basis upon which the appellant brought that appeal in the First-tier Tribunal. If the appeal is against a decision listed under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002” - whether in its current iteration or prior to the amendments made by the Immigration Act 2014), that appeal is brought “under section 82(1)” and is governed by the regime established by NIAA 2002. 13. However, if the appeal is against an “EEA decision”, as defined by Regulation 2(1) of the 2016 Regulations (or its predecessors under the 2006 and 2000 Regulations), that appeal is brought under those Regulations by virtue of Regulation 36(1), which provides: “36.— Appeal rights (1) The subject of an EEA decision may appeal against that decision under these Regulations. The same right of appeal was previously afforded under Regulation 26 of the 2006 Regulations and Regulation 29 of the 2000 Regulations. 14. An appeal brought under the EEA Regulations is/was subject to the regime established by the applicable Regulations. 15. The significance of the distinction between the regimes for the purposes of abandonment becomes apparent when we examine the EEA Regulations in a little more detail, below. 16. The second matter of importance relates to the changes to the appellate regime in Part 5 of NIAA 2002 over the course of time. Prior to the significant amendments brought about by the Immigration Act 2014 appellants were able to appeal under section 82(1) against an extensive range of immigration decisions on a wide variety of grounds. Amongst those was the assertion that the decision in question breached the appellant’s rights under the EU Treaties (contained in what was section 84(1)(d)). Thus, an appellant was able to rely on claimed rights of residence under EU law in an appeal brought “under section 82(1)” NIAA 2002. 17. Upon the coming into force of section 15 of the Immigration Act 2014 on 20 October 2014 (subject to certain savings and transitional provisions) the range of appealable decisions was dramatically reduced and the corresponding grounds of appeal similarly constrained. Appellants could no longer rely on EU law rights as a ground in an appeal brought “under section 82(1)” NIAA 2002 . 18. With these two points in mind, we turn to examine the circumstances in which an appeal concerning the assertion of rights under EU law was or is to be treated as abandoned. Abandonment of appeals brought under section 82(1) NIAA 2002 19. In its original form, section 104(4) NIAA 2002 provided that: “104 Pending appeal … (4) An appeal under section 82(1) shall be treated as abandoned if the appellant- (a) is granted leave to enter or remain in the United Kingdom…” (Emphasis added) 20. Following changes brought about on 13 November 2006 by the Immigration, Asylum and Nationality Act 2006, section 104(4A) NIAA 2002 has provided, in so far as is relevant for the purposes of this appeal, as follows: “104 Pending appeal … (4A) An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom …” (Emphasis added) 21. As we have seen, prior to the amendments to NIAA 2002 made by the Immigration Act 2014, appellants were able to rely on an EU law ground of appeal in an appeal brought “under section 82(1)” NIAA 2002 against “an immigration decision”. It followed that such an appeal in which EU law rights were relied on was to be treated as abandoned if leave to remain was granted. 22. There was a second legislative mechanism by which an appeal under section 82(1) NIAA 2002 concerning the assertion of EU law rights was to be treated as abandoned. 23. Between 1 January 2004 and its revocation on 30 April 2006, Regulation 33(1A) of the Immigration (European Economic Area) Regulations 2000 provided: “33.—