[2024] UKUT 00362 (IAC)

The respondent submits, in summary, that the appellant was required to provide evidence that immediately prior to 23:00 GMT on 31^st December 2020 he was lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016, or that he was otherwise a ‘relevant person’ as defined in regulation 3 of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (“the Citizens’ Rights Regulations 2020”). The respondent submits the First-tier Tribunal Judge erroneously concluded the appellant satisfies the requirement that he was exercising Treaty Rights in the period immediately prior to 23.00 on 31 December 2020.

The focus is upon the words ‘immediately prior to’ in Regulations 3 and 4 of the Citizens' Rights Regulations 2020. The appellant had made an application on 7 September 2019 under the EU Settlement Scheme but, the respondent submits, the appellant was sentenced on 7 July 2020 to 3 years and 10 months imprisonment. Mr Clarke submits that periods in prison cannot be taken into consideration in the context of the acquisition of the right of permanent residence and it must rationally follow that the appellant was not exercising Treaty Rights immediately prior to 23:00hrs on 31 December 2020.

The appellant has filed a rule 24 response settled by the appellant’s solicitors dated 24 January 2023. The appellant claims the respondent’s grounds do not establish a material error of law in the decision of the First-tier Tribunal and amount to nothing more than a disagreement with the decision.

Ms Jones submits the Judge was entitled to have regard to the chronology of events and properly noted that the offending conduct had occurred significantly before 31 December 2020. As the relevant conduct had occurred before the end of the transition period the Judge was entitled to find the appellant benefited from Article 20 of the Withdrawal Agreement and his removal from the UK should have been considered in accordance with Chapter VI of Directive 2004/38/EC.

Distilled to its essence, Ms Jones submits that here, the appellant had been granted a registration certificate on 25^th April 2017 and he made an in-time application under the EU Settlement Scheme in September 2019, before the specified date. She submits it was open to the First-tier Tribunal Judge to conclude that the appellant’s employment until July 2020 satisfies the requirement that immediately before 23:00hrs on 31 December 2020 the appellant was lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016

Ms Jones submits that on a proper application of Regulation 4 of the Citizens’ Rights Regulations 2020, Regulations 5 to 10 of the EEA Regulations 2016 continue to have effect during the relevant period. The relevant period here as defined by Regulation 4(6) of the Citizens’ Rights Regulations 2020 is the period between the application deadline (here, 31 December 2020) and the date upon which the respondent reached her decision not to grant any leave to enter or remain in the United Kingdom in response to the applicant's application and the first day on which the applicant was no longer entitled to appeal against that decision (regulation 4(6)(b)(ii)).

Ms Jones submits the First-tier Tribunal Judge was right to conclude the appellant was covered by the saved 2016 Regulations and that the decision taken by the respondent by reference to domestic legislation rather than the EEA Regulations 2016, is not in accordance with the law. The question whether the decision is proportionate to the legitimate aim did not therefore arise. The judge did not therefore have to have regard to the public interest considerations set out in s117C of the Nationality, Immigration and Asylum Act 2002. Ms Jones submits it remains open to the respondent to make a decision to deport the appellant under the EEA Regulations 2016.