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Appendix EU of the Immigration Rules
Appendix EU of the Immigration Rules
Appendix EU gives effect to Title II of Part 2 of the WA, setting out the rules for applications under the EUSS. There are three broad requirements: the applicant must make a valid application, must meet the suitability requirements and must meet the eligibility requirements. Rules EU14 and EU 11 set out the eligibility requirements for pre-settled and settled status.
Rule EU11 provides, so far as it is material:
EU11. The applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen … where the Secretary of State is satisfied… that, at the date of application, one of conditions 1 to 7 set out in the following table is met:
…
Condition 3: (a) The applicant:
is a relevant EEA citizen… and
The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and
Since then, no supervening event has occurred in respect of the applicant
“Continuous qualifying period” is defined in Annex 1, so far as is relevant to these appeals, as
a period of residence in the UK and Islands… (a) which began before the specified date… and (b) during which none of the following occurred [absences from the United Kingdom] and(b)
any period of absence due directly to an order or decision to which sub-paragraph (b)(iii) below refers, where that order or decision has been set aside or revoked; or
(ii) the person served or is serving a sentence of imprisonment of any length in the UK and Islands, unless the conviction which led to it has been overturned; or
(iii) any of the following in respect of the person, unless it has been set aside or revoked
[note: the numbering is taken from the bundle and appears to be incorrect there being two sub-paragraphs (ii)]
“Supervening event” is defined in Annex 1 as occurring when:
a person has been absent from the UK and islands for (a) more than five consecutive years or
any of the following events has occurred in respect of the person, unless it has been set aside or revoked:
(i) any decision or order to exclude or remove under regulation 23 or 32 of the EEA Regulations (or under the equivalent provisions of the Immigration (European Economic Area) Regulations of the Isle of Man); or
(ii) a decision to which regulation 15(4) of the EEA Regulations otherwise refers, unless that decision arose from a previous decision under regulation 24(1) of the EEA Regulations (or the equivalent decision, subject to the equivalent qualification, under the Immigration (European Economic Area) Regulations of the Isle of Man); or
(iii) an exclusion decision; or
(iv) a deportation order, other than by virtue of the EEA Regulations; or
(v) an Islands deportation order; or
(vi) an Islands exclusion decision
With regard to suitability, we note that rule EU 15 provides:
EU15. (1) An application made under this Appendix will be refused on grounds of suitability where any of the following apply at the date of decision:
The applicant is subject to a deportation order or to a decision to make a deportation order; or
The applicant is subject to an exclusion order or exclusion decision
A deportation order is defined in Annex 1 as follows:
as the case may be:
an order made under section 5(1) of the Immigration Act 1971 by virtue of regulation 32(3) of the EEA Regulations; or
an order made under section 5(1) of the Immigration Act 1971 by virtue of section 3(5) or section 3(6) of that Act in respect of:
conduct committed after the specified date; or
conduct committed before the specified date, where the Secretary of State has decided that the deportation order is justified on the grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations, irrespective of whether the EEA Regulations apply to the person (except that in regulation 27 for “with a right of permanent residence under regulation 15” and “has a right of permanent residence under regulation 15” read “who meets the requirements of paragraph EU11 or EU12 of Appendix EU to the Immigration Rules”; and for “an EEA decision” read “a deportation decision”)
in addition, for the avoidance of doubt, (b) includes a deportation order made under the Immigration Act 1971 in accordance with section 32 of the UK Borders Act 2007”.
We pause here to note that, as Ms Smyth submitted, the effect of the amendment of reg 27 of the EEA Regulations is that the enhanced right of protection granted by reg 27 (3) to those who had acquired permanent residence through five years’ residence in accordance with the EEA Regulations is extended by the EUSS to those who had simply resided in the United Kingdom for that period.
In addition to the legislative provisions set out above, we note also that the SSHD has provided guidance on conducive deportation which sets out under which power a deportation decision should be made.
Grounds of appeal
Although the EEA Regulations have been revoked, as noted above [20], in a case where the Grace Period Regulations do not apply, the appeal rights under those regulations have been preserved by paragraphs 4 and 5 to Schedule 3 of the Transitional Provisions Regulations. Paragraph 5 (1) of those regulations draws a distinction between appeals and decisions taken prior to 31 December 2020 on the one hand (1(a) to 1(c)) and those taken after that date (1 (d)). That distinction is maintained in paragraph 6 (1)(cc) which sets out the rights of appeal in each of these different categories.
Thus, in an appeal against a decision taken under the EEA Regulations after 31 December 2020, the ground of appeal is whether the decision under challenge breached the appellant's rights under the EEA Regulations as they are continued in effect by the Transitional Provisions Regulations or the CRA Regulations, not whether they breached Treaty Rights.
Under the CRA Regulations a right of appeal is granted to those refused leave under Appendix EU. The permissible grounds of appeal are set out in reg. 8 and provide, so far as is relevant:
Reg. 8 - Grounds of appeal
(1) An appeal under these Regulations must be brought on one or both of the following two grounds.
(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of-”
(a) [Chapter 1, or Article 24(2), 24(3), 25(2) or 25(3) of Chapter 2] , of Title II [, or Article 32(1)(b) of Title III,] of Part 2 of the withdrawal Agreement,
(3) The second ground of appeal is that-
(a) where the decision is mentioned in regulation 3(1)(a) or (b) or 5, it is not in accordance with the provision of the immigration rules by virtue of which it was made; …
Finally, a decision refusing a human rights claim can be appealed under sections 82 (1)(b) and 84 (2) of the 2002 Act on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.
- Heading
- Introduction
- Procedural history
- Broad outline of the issues
- The Law
- Background
- Domestic law on deportation
- The WA in detail
- Appendix EU of the Immigration Rules
- Discussion
- The Divisional Court set out the general principles on this issue at [80]
- ZA
- AS (Szuba)
- Rudas Rudokas (“RR”)
- The appeal will be listed to be remade in the Upper Tribunal on a date to be fixed
- The parties are therefore directed to prepare and serve 10 working days before the next hearing in electronic form
- The appeal will be listed to be remade in the Upper Tribunal on a date to be fixed
- RR 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
- CHRONOLOGY & LIST OF ISSUES
- 2008: A claims to have moved with his family move to the United Kingdom
- 22 Sept 2010: A convicted of failing to comply with CRO/CPO (unpaid work requirement imposed) [328]
- 25 Oct 2017: A convicted of battery [328]
- 30 July 2021: A convicted of offence (inflicting GBH without intent) in connection with the 28 Nov 2019 incident and is sentenced to 18 months imprisonment (reduced on appeal to 12 months) [343]
- 9 Sept 2021: A begins prison sentence 11 Oct 2021: SSHD notify A of intention to deport due to his conviction [348] [360]
- 15 Nov 2021: A’s solicitors submit representations resisting deportation [361]
- 3 May 2022: SSHD notifies A of decision to
- 9 May 2022: A served with deportation decision/order 9 May 2022: A files appeal on basis that the SSHD’s decision [15]
- 2 Nov 2022: Appeal heard by FTT (Judge Coutts) against both the human rights and EUSS decisions
- 20 Dec 2022: FTT decision handed down
- 4 May 2023: UT (Judge Kebede) grants SSHD’s appeal on basis that
- LIST OF 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 i
- In respect of A’s appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the Appeals Regs”)
- CHRONOLOGY & LIST OF ISSUES
- 9 Nov 2021: S’s sols provide submissions in response to deportation decision, including raising human rights claim [A/39]
- 23 May 2022: SSHD decision to
- 30 May 2022: S appealed against (i) human rights claim refusal and (ii) deportation order on the basis that [A/67]
- 30 June 2022: S applies under EUSS again allegedly on SSHD advice (previous application deleted) 21 Dec 2022: Appeal heard (Judge Dixon)
- 3 Feb 2023: SSHD appeals on basis that
- 24 Feb 2023: PTA granted on both grounds (Judge Curtis)
- 18 March 2023: S released from prison(?) [A/22] What is the source and scope of S’s right of appeal to the FTT?
- 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?
- Without prejudice to the above, in deciding the appeal additional potential issues are
- CHRONOLOGY
- 13 July 2022: R convicted of money laundering/weapons possession offences (2-year prison sentence and POC (£384,120.19)) [8]
- 9 Aug 2022: SSHD gives notice of Stage 1 decision to deport under United Kingdom Borders Act 2007 / Immigration Act 1971 [11] 23 Aug 2022: R appeals 9 August 2022 Stage 1 decision to deport on (i) human rights grounds (Art. 8) and (ii) that his depor
- 13 Oct 2022: R placed in immigration detention [71]
- Feb 2023: SSHD applies for permission to appeal on two grounds
- LIST OF ISSUES – TO BE DETERMINED AT ERROR OF LAW HEARING UNLESS PARTIES AGREE THERE WAS AN ERROR OF LAW What was the scope of R’s right of appeal against the decision of 9 August 2022?
- Conclusions