[2024] UKUT 00066 (IAC)

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.