[2024] UKUT 00066 (IAC)

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: