[2024] UKUT 00101 (IAC)

Mr Deller’s written and oral submissions for the respondent were, in summary, as follows. Chenchooliah was about expulsion and was irrelevant to a case such as the present, in which no expulsion decision had been taken. Mr Jafferji seized on a sentence in the decisions under appeal which told the appellants that they should leave the United Kingdom but that did not suggest that the decisions were expulsion decisions. Decisions taken under Part 4 of the 2016 Regulations were a different class of EEA decision and carried a right of appeal. It was quite clear that there was no such decision in respect of either appellant.

The applications were for permanent residence cards, but the applicants were entitled to pursue in their appeals a submission that they had any available entitlement under the 2016 Regulations. The applicants had succeeded before the FtT in reliance on proportionality considerations, but the crux of the case was whether those considerations arose when an individual ceased to be a beneficiary or whether an expulsion decision was also required. In the Secretary of State’s submission, an expulsion decision was clearly required. There was no requirement for the Secretary of State to make an expulsion decision when faced with a request for a permanent residence card.

Mr Jafferji confirmed that he pursued no argument in reliance on Lounes v SSHD (C-165/16); [2018] Imm AR 502, which was only included in the bundle of authorities because there had been some reference to it by the Secretary of State. He also confirmed that he had not contended before the FtT, and did not intend to contend before us, that the appellants were entitled to permanent residence. He had accepted throughout that the appellants were not beneficiaries. The real issue was whether the appellants were deprived of the procedural safeguards in the Directive because the Secretary of State had failed to make a removal decision. The appellants did not submit that the respondent was obliged to make such a decision, merely that the FtT was entitled to consider those procedural safeguards in the absence of an expulsion decision.

Mr Jafferji submitted that it was necessary to consider the saving provisions made by Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020(Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020. By reference to paragraph 5(3)(d) and paragraph 6(cc)(bb) thereof, the only basis upon which the appellants could succeed in their appeal was under the preserved 2016 Regulations. Regulation 23(6)(a) entitled the Secretary of State to remove an EEA national or the family of such a person if they did not have or ceased to have a right to reside under the Regulations but she had chosen to make no such decision; the only decision which had been taken in respect of the appellants was under regulation 24.

The factors of the sponsor’s case were highlighted in the rule 24. He had had no opportunity to make representations and it had been accepted in his appeal that he had not used fraud to obtain his Austrian citizenship. The Secretary of State had been aware of his situation since 2016 because he had made a statelessness application then. It was only later that the Secretary of State had sought to revoke his Permanent Residence Card, and his appeal against that decision had been successful. In the appellants’ cases, however, no steps had been taken to cancel their residence cards. The only way in which the appellants could have triggered consideration of their circumstances was by making the applications they had made. (Mr Jafferji accepted in answer to Judge Blundell’s question, however, that the appellants had asked the Secretary of State to issue permanent residence cards.) They had always sought to comply with immigration control, even though any rights they enjoyed under the Directive were inherent. The Secretary of State had not sought to expel them even after she was alerted to the revocation of the sponsor’s citizenship.

Mr Jafferji submitted that the question was whether the absence of a decision to remove the appellants was fatal. It was not, in his submission, because the FtT was entitled to consider the question of proportionality in order to provide effective protection against the appellants falling into limbo. The mirror image of a right to remain was a right not to be removed. There was some doubt over whether the Secretary of State’s decision making was even complete where she had not considered expulsion. It seemed that the appellants would now lose any right not to be removed as a result of the Secretary of State’s inaction. That was contrary to the principle of effectiveness.

Mr Deller made two points in response. Firstly, it was suggested that it was relevant that the Secretary of State had not revoked the appellants’ residence cards. It was not; it was clear from regulation 18(7)(c) of the 2016 Regulations that a residence card was no longer valid if the holder ceased to have a right to reside under the Regulations. Secondly, it was not always incumbent on the Secretary of State to make a removal or expulsion decision. As the Court of Appeal had observed in Daley Murdock v SSHD [2011] EWCA Civ 161; [2011] Imm AR 500, it was always open to a person unlawfully present in the UK to leave. Although it was said that a right to remain and a right not to be removed were the mirror image of one another, the reality was that they arose ‘in different parts of the book’.

We rose to consider our decision. On resuming, we stated that we were satisfied that the judge had erred materially in law in considering proportionality in the absence of an expulsion decision. We indicated that the decision of the FtT would be set aside as a result. We noted that Mr Jafferji had accepted that the appellants were no longer beneficiaries under the Directive and that they were not entitled to permanent residence. We asked, therefore, whether there was anything which might properly be said to persuade us to allow the appeal on the limited grounds available to the appellants. Mr Jafferji said that he could not muster any argument, but he invited us to receive further submissions after we had issued our decision. We declined to do so and indicated that we would substitute a decision to dismiss the appeals. Our reasons for reaching those conclusions are as follows.