[2024] UKUT 00066 (IAC)

The United Kingdom has left the EU. The transition period during which EU law had continued to apply came to an end at 11pm on 31 December 2020. At that point, EU Free Movement rights ceased to be effective or enforceable – see section 1 and schedule 1 of the ISSCA - and the EEA Regulations were revoked. Two discrete bodies of law, however, remained – retained EU law which is not relevant to these appeals, and the WA which has direct effect by operation of section 7A of EUWA 2018.

The rights of EU nationals under EU law to enter and reside in the United Kingdom are described in detail in Celik v SSHD [2023] EWCA Civ 921 at [10]-[18]. Prior to the United Kingdom’s exit from the EU, by operation of section 7 of the Immigration Act 1988, those having a right to enter or reside under European Law did not (absent any exclusion or deportation order) require leave to enter or remain that would otherwise have been imposed by section 3 of the 1971 Act. Those rights to enter and reside were primarily set out, for domestic purposes, in the EEA Regulations, although those relied on the machinery of the 1971 Act to effect deportation.

Although these rights came to an end, one of the purposes of the WA was to provide reciprocal protection for United Kingdom and EU nationals who had exercised free movement rights, and to ensure that their rights under the WA were enforceable as part of the United Kingdom’s withdrawal from the EU. Article 18 of the WA permits states to require applications for a new residence status to be made. The United Kingdom chose to require such applications to be made, setting up a residence scheme, the EUSS which enables EU, other EEA and Swiss citizens resident in the United Kingdom prior to 31 December 2020, and their family members, to obtain the necessary immigration status – a grant of leave pursuant to the Immigration Rules.

Despite being revoked by ISSCA, certain provisions of the EEA Regulations were preserved by the Grace Period Regulations and the Transitional Provisions Regulations.

The purpose of the Grace Period Regulations was to preserve the residence rights enjoyed under the EEA Regulations at the end of the transition period, that is, 31 December 2020 until 30 June 2021, the date on which the “grace period” ended. In the case of those who made applications under the EUSS which remained undecided as at that date, the residence rights are preserved until a decision is made and any appeal rights are exhausted. Although the Grace Period Regulations do not make provision for late applications to be made, this can be done under the Immigration Rules as set out in Appendix EU in certain circumstances.

It is, however, important to note that (a) only some of the EEA Regulations continue to apply (Footnote: ¹) and (b) they continue to apply only to a “relevant person” as defined in reg. 3(6).

To meet the “relevant person” test the person in question must have been lawfully resident (or had a right of permanent residence), in accordance with the EEA Regulations, immediately before 23:00 GMT on 31 December 2020 and does not yet have leave to enter or remain under the EUSS. Whether a person was “residing” in the United Kingdom at a time when it would be taken into account for purposes of calculating continuous residence under reg 3 of the EEA Regulations – see reg 3 (5)(b).

Reg 4 of the Grace Period Regulations also protects “an applicant”, that is, a person who has made an in-time application under the EUSS and who was lawfully resident in the United Kingdom, or had a right of permanent residence, under the EEA Regulations at the end of the transition period until that application is finally decided.

It must, however, be noted in the context of deportation, that in order to come within reg 3 or 4 of the Grace Period Regulations “residence” immediately before 31 December 2020 requires falling within the meaning of continuous residence as set out in reg.3 of the EEA Regulations which provided:

The relevant provisions of the WA are set out in detail in Celik at [19] to [29]. Part Two of the WA makes provision in relation to citizens’ rights. The scope of Part Two, and the rights and obligations arising under it are matters we will address in due course.

Although these regulations are not directly applicable to any of these cases, they do form part of the framework whereby some rights conferred by EU law are preserved by the WA. In brief, these regulations preserve the EEA Regulations (as amended by the CRRE regulations) for a person who is “protected by the citizens’ rights provisions” (reg 2(2)):

The rights under the EEA Regulations which are preserved are limited by these regulations, as the “EEA decision” against which an appeal under reg. 36 can lie is limited to a decision to remove a person from the United Kingdom. Reg 27 is preserved, subject to amendments the more important of which (para 4 of the Schedule) are to preserve the enhanced protection for those with permanent residence and ten years residence but with the change that “permanent residence” is amended to cover those eligible for, indefinite leave to enter or remain in the United Kingdom granted under Appendix EUSS or EU-FP. That mirrors the definition of “deportation order” within Appendix EUSS (see [50] below)

The appeal rights against an EEA decision in reg. 36 of the EEA Regulations are preserved, albeit with the omission of regs 36 (3) to (6) and (12) which imposed the requirement to provide certain documents in order for an appeal to be effective.

We turn next to the specific provisions relating to the power to deport EU and EEA nationals.

As is well–established, prior to the United Kingdom’s exit from the EU, there were in effect two deportation regimes: one applicable to EU (and EEA) nationals and their family members; one applicable to other foreign nationals (see e.g. Straszewski v SSHD [2015] EWCA 1245 at [12] ff and Goralczyk v Upper Tribunal [2018] CSIH 60 at [21] to [22]) but both regimes were subject to the requirement that deportation be deemed conducive to the public good but EEA nationals were subject to the regime under the 2007 Act, but subject to the exception set out in section 33.

Under the EEA Regulations, the deportation of an EEA national was a decision taken on grounds of public policy, public security or public health and so subject to the provisions of reg 27 which in turn gave effect to Chapter VI of the Citizens’ Rights Directive.