[2024] UKUT 00362 (IAC)

It is useful to begin by setting out the relevant legal framework, most of which is common ground between the parties. The EEA Regulations 2016 gave effect to the UK’s obligations arising from membership of the EU. The United Kingdom and European Union reached an agreement at European Council on the United Kingdom’s withdrawal from the European Union. The recitals to the Withdrawal Agreement stress that the objective of the Agreement is to ensure an orderly withdrawal of the United Kingdom from the Union and Euratom.

Article 20 of the Withdrawal Agreement is concerned with the restrictions of the rights of residence and entry and states:

“1.

The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under this Title, where that conduct occurred before the end of the transition period, shall be considered in accordance with Chapter VI of Directive 2004/38/EC.

2.

The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under this Title, where that conduct occurred after the end of the transition period, may constitute grounds for restricting the right of residence by the host State or the right of entry in the State of work in accordance with national legislation.

…”

Parliament legislated through the Immigration Rules and the European Union (Withdrawal Agreement) Act 2020 to protect the rights of EEA citizens and their family members who are resident in the UK by the end of the transition period (31 December 2020). The Citizens' Rights Regulations 2020 were made under the powers vested in the Minister in sections 7(1) and (4) of the Act.

The issue in this appeal centres upon Regulations 3 and 4 of the Citizens’ Rights Regulations 2020:

“3.— Grace period

(1)

This regulation has effect if the EEA Regulations 2016 are revoked on IP completion day (with or without savings).

(2)

The provisions of the EEA Regulations 2016 specified in regulations 5 to 10 continue to have effect (despite the revocation of those Regulations) with the modifications specified in those regulations in relation to a relevant person during the grace period.

(3)

The provisions specified in regulation 11 apply in relation to a relevant person during the grace period as if any reference to the EEA Regulations 2016 or any provision of those Regulations are to the Regulations or provision of the Regulations as continued in effect and modified by regulations 5 to 10.

(4)

The enactments specified in regulation 12 apply in relation to a relevant person during the grace period with the modifications specified in that regulation.

(5)

For the purposes of this regulation—

(a)

the grace period is the period beginning immediately after IP completion day and ending with the application deadline;

(b)

a person is to be treated as residing in the United Kingdom at any time which would be taken into account for the purposes of calculating periods when the person was continuously resident for the purposes of the EEA Regulations 2016 (see regulation 3);

(c)

a person who does not have the right to reside in the United Kingdom permanently is to be treated as having such a right if the person had a right of permanent residence in the United Kingdom under those Regulations (see regulation 15) and who, immediately before IP completion day, has been absent from the United Kingdom for a continuous period of 5 years or less (disregarding any period of absence before the person acquired the right of permanent residence).

(6)

In this regulation—

…

"relevant person" means a person who does not have (and who has not, during the grace period, had) leave to enter or remain in the United Kingdom by virtue of residence scheme immigration rules and who—

(a)

immediately before IP completion day—

(i)

was lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016, or

(ii)

had a right of permanent residence in the United Kingdom under those Regulations (see regulation 15), or

(b)

is not a person who falls within sub-paragraph (a) but is a relevant family member of a person who immediately before IP completion day—

(i)

did not have leave to enter or remain in the United Kingdom by virtue of residence scheme immigration rules, and

(ii)

either—

(aa) was lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016, or

(bb) had a right of permanent residence in the United Kingdom under those Regulations (see regulation 15).

4.— Applications which have not been finally determined by the application deadline

(1)

This regulation has effect if the EEA Regulations 2016 are revoked on IP completion day (with or without savings).

Whether addressed through Regulation 3 or 4 of the Citizens’ Rights Regulations 2020, an applicant is required to establish that immediately before IP completion day (defined in s39 European Union (Withdrawal Agreement) Act 2020 as 11.00 p.m. on 31 December 2020) the person or applicant was either: (i) lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016, or (ii) they had a right of permanent residence in the United Kingdom under those Regulations.

Before us, Ms Jones as she did before the First-tier Tribunal, referred to the respondent’s guidance published for Home Office Staff: ‘Public policy, public security or public health decisions referred to above. The guidance confirms that a decision on grounds of public policy, public security or public health may need to be made in respect of any of the cohorts protected by the Withdrawal Agreements or the United Kingdom’s domestic implementation of the Agreements, in relation to conduct occurring before 23:00 GMT on 31 December 2020. The guidance confirms a person is protected by the Agreements (or the UK’s domestic implementation of the Agreements) if they, inter alia, have submitted an application to the EUSS (and if the application was submitted after the relevant deadline, they have reasonable grounds for doing so) and a decision or appeal is pending on the application.

The guidance adds little and does not assist us in addressing the issue that arises here. The guidance reiterates what is provided for by Regulation 4 of the Citizens’ Rights Regulations 2020. In fact, as the respondent points out, the guidance states, at page 9:

“For the purpose of this guidance, ‘lawfully resident’ means having a ‘right to reside’ under the EEA Regulations 2016 under the EEA Regulations 2016. This includes:

• 3 months’ initial right of residence under regulation 13

• extended rights of residence under regulation 14

• residence after having acquired a right of permanent residence under regulation 15

• derivative rights of residence under regulation 16

A period of imprisonment doesn’t count as lawful residence and will break the continuous period of residence necessary to acquire permanent residence….”

Insofar as the guidance provides any assistance at all, it undermines the appellant’s claim. In determining whether the appellant was lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016, the guidance indicates that for someone to be ‘lawfully resident’ means that they have a right to reside under the relevant provisions of the EEA Regulations 2016, and that a period of imprisonment does not count as lawful residence.

We do not accept the words ‘immediately before’ IP completion day in Regulations 3 and 4 of the of the Citizens’ Rights Regulations 2020 can rationally be read as contended for by Ms Jones. As far as immigration rights are concerned, the preamble to the Withdrawal Agreement states inter alia:

“RECOGNISING that it is necessary to provide reciprocal protection for Union citizens and for United Kingdom nationals, as well as their respective family members, where they have exercised free movement rights before a date set in this Agreement, and to ensure that their rights under this Agreement are enforceable and based on the principle of non-discrimination; recognising also that rights deriving from periods of social security insurance should be protected,

RESOLVED to ensure an orderly withdrawal through various separation provisions aiming to prevent disruption and to provide legal certainty to citizens and economic operators as well as to judicial and administrative authorities in the Union and in the United Kingdom, while not excluding the possibility of relevant separation provisions being superseded by the agreement(s) on the future relationship,“

Mr Clarke referred us to the decision of the Upper Tribunal in Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) in which the then President Mr Justice Lane said, at [60]:

“…One looks in vain in Article 18 and elsewhere in the Withdrawal Agreement for anything to the effect that a person who did not meet the relevant requirements as at 11pm on 31 December 2020 can, nevertheless, be treated as meeting those requirements by reference to events occurring after that time. If that had been the intention of the United Kingdom and the EU, the Withdrawal Agreement would have so specified. Article 31 of the Vienna Convention on the Law of Treaties (1969) requires a treaty to be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. It would plainly be contrary to the Vienna Convention to interpret the Withdrawal Agreement in the way for which the appellant contends.”

Although the Upper Tribunal in Celik [2023] EWCA Civ 921 was concerned with the rights of partners of EEA nationals who were unable to marry before the specified date, construing the words ‘immediately before’ in accordance with the ordinary meaning to be given to the terms of the treaty in context, and in the light of its object and purpose, in our judgement, the words ‘immediately before’, must be read as a reference to the situation as it was at 23:00hrs on 31 December 2020 or, where relevant, the expiry of the grace period. There is nothing in the recent consideration of an appeal against the decision of the Upper Tribunal which disturbs this approach to the provisions of the Withdrawal Agreement. The Withdrawal Agreement recognised the need to provide reciprocal protection for Union citizens and for United Kingdom nationals, where they have exercised free movement rights before 23:00hrs on 31 December 2020.

The adverb ‘immediately’ imposes a requirement for something very close to a particular time. Read alongside the words ‘before IP completion day’ the phrase ‘immediately before IP completion day’ is in our judgment a reference to the particular circumstances as they were on IP completion day. That construction is in accordance with the need to ensure an orderly withdrawal aiming to prevent disruption and to provide legal certainty to citizens and economic operators as well as to judicial and administrative authorities in the Union and in the United Kingdom, as cited in the preamble to the Withdrawal Agreement.

Mr Clarke referred us to the decision of the Court of Justice of the European Union in Ziolkowski v Land Berlin (Directive 2004/38/EC) Joined Cases C-424/10 and C-425/10 and the decision of the Court of Justice of the European Union in Onuekwere v Secretary of State for the Home Department (Directive 2004/38/EC) Case C-378/12.

In Ziolkowski v Land Berlin the Grand Chamber held that a period of residence which complies with the law of a Member State but does not satisfy the conditions laid down in Article 7(1) of Directive 2004/38 ('Right of residence for more than three months') cannot be regarded as a 'legal' period of residence within the meaning of Article 16(1).

In Onuekwere v Secretary of State for the Home Department (Directive 2004/38/EC) the CJEU considered the circumstances in which, if any, a period of imprisonment constitutes legal residence for the purposes of the acquisition of a permanent right of residence under Article 16 of Directive 2004/38. The CJEU said:

“27.

In view of all the foregoing considerations, the answer to the first question is that Article 16(2) of Directive 2004/38 must be interpreted as meaning that the periods of imprisonment in the host Member State of a third-country national, who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods, cannot be taken into consideration of the context of the acquisition by that national of the right of permanent residence for the purposes of that provision.

…

32.

… Article 16(2) and (3) of Directive 2004/38 must be interpreted as meaning that continuity of residence is interrupted by periods of imprisonment in the host Member State of a third-country national who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods.”

Ms Jones submits that in each of the cases that are relied upon by Mr Clarke, the Grand Chamber and the CJEU were concerned with matters relevant to the acquisition of the right of permanent residence under European Union law, whereas here, the appellant had a residence card. Although that is correct, that does not assist the appellant. A residence card simply allowed EEA citizens to live, study and work in the UK, and the fact that the appellant had previously been issued with a residence card on the basis of an assessment of his circumstances at that time, does not assist the appellant establish and is not determinative of the question of fact as to whether the appellant was lawfully resident in the UK by virtue of the EEA Regulations 2016 immediately before IP completion day. In Ziolkowski v Land Berlin, the Grand Chamber confirmed the aim of Directive 2004/38 was to set out a structured approach to the right of freedom of movement and residence in order to facilitate the exercise of that right. The Directive and the EEA Regulations 2016 introduced a gradual system as regards the right of residence in the host Member State. The first stage concerns periods of residence up to three months and is addressed in Article 6. The second stage concerns periods of residence of longer than three months and is addressed in Article 7. The third stage provides for the acquisition of permanent residence, after residing legally, for a continuous period of five years in the host Member State. At paragraph [40], the Grand Chamber said:

“Second, for periods of residence of longer than three months, the right of residence is subject to the conditions set out in Article 7(1) of Directive 2004/38 and, under Article 14(2), that right is retained only if the Union citizen and his family members satisfy those conditions. It is apparent from recital 10 in the preamble to the directive in particular that those conditions are intended, inter alia, to prevent such persons becoming an unreasonable burden on the social assistance system of the host Member State.”

Article 7(1) of Directive 2004/38 provides that Union citizens have the right of residence on the territory of another Member State for a period of longer than three months if they are workers or self-employed persons in the host Member State. Continuity of residence is interrupted by periods of imprisonment. Put simply, the individual is not employed, self sufficient or exercising other Treaty Rights during the period of imprisonment.

An EEA national who had not acquired the right of permanent residence and who was in prison on 31 December was not exercising Treaty Rights in accordance with Article 7 of the Directive, and therefore was not lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016 immediately before IP completion day.

It follows that where the appellant cannot benefit from the saving of the EEA Regulations 2016 during the grace period and whilst applications are finally determined as set out in the Citizens’ Rights Regulations 2020, a deportation decision must be taken and assessed by reference to the domestic legal framework by reference to the Immigration Act 1971, UK Borders Act 2007 and the Immigration Rules.