[2023] UKUT 00162 (IAC)

The EEA Regulations were revoked on 31 December 2020 which coincided with “IP completion day” in relation to the UK’s withdrawal from the European Union. However, some provisions of the EEA Regulations were retained for certain transitional purposes thereafter.

The provisions of the EEA Regulations which are relevant to my consideration are regulation 16 (which deals with the requirements for a derivative right to reside), regulation 20 (which sets out the circumstances in which the Respondent must issue a derivative residence card and which is therefore aligned with regulation 16) and regulation 36 (which sets out the rights of appeal against an adverse decision – of particular relevance here is regulation 36(5)).

As the Tribunal pointed out at [11] of the decision in James, the provisions of EU law which cease to apply after the UK’s withdrawal from the EU include those entitling individuals to rely on a “Zambrano” derivative right to reside.

The EEA Regulations are continued for transitional purposes by statutory instruments including the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 1309/2020) (“the 2020 Regulations”). Both parties in this appeal agree that those are the relevant regulations. However, the parties disagree as to the effect of those regulations.

At [12] to [13] of the decision in James, the Tribunal concluded that the effect of the 2020 Regulations is that regulations 16 and 20 no longer apply to a determination of an appeal after 31 December 2020. That is because those provisions are not amongst those listed in paragraph 6 of Schedule 3 to the 2020 Regulations (“Schedule 3”). Paragraph 5 of Schedule 3 which is headed “Existing appeal rights and appeals” provides broadly that only those provisions which are included in paragraph 6 of Schedule 3 continue to apply. I will need to come back to that provision.

The Respondent sought permission to rely on the decision in James even though it remains unreported. I give permission to do so. As a decision of the President and Vice-President of this Tribunal it is of course highly persuasive. I do however note that the Tribunal did not have the benefit of full argument on this issue as Ms James was in person.

The Appellant also sought permission to rely on certain unreported decisions of this Tribunal. For the sake of completeness, I set out the titles of those cases:

None of those cases has any relevance to this appeal for the following reasons. They are all concerned with appeals against refusals of status under the EUSS and not derivative rights under the EEA Regulations. The transitional arrangements which apply in those cases are different. The Siddiqa case concerned an entry clearance decision in relation to an extended family member and has nothing to do with Zambrano carers. The other two cases were both concerned with the application of the judgment in R (oao Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37 which, as I pointed out at [9] of my error of law decision has no bearing in an appeal against a refusal under the EEA Regulations since it was concerned with the provisions of the EUSS. Two of the cases were error of law decisions only. Further and in any event, the jurisdiction issue was not raised or decided in any of those cases. As such, they have no bearing on my decision.

I therefore return to the 2020 Regulations since those are the applicable transitional arrangements. Schedule 3 to the 2020 Regulations provides for savings in connection with the EEA Regulations. Paragraph 1 states that, in Schedule 3, references to the EEA Regulations are to those regulations “as they had effect immediately before they were revoked” “unless provided otherwise”.

Paragraph 3 of Schedule 3 provides for savings in relation to “pending applications for documentation under the EEA Regulations”. Paragraph 3(6) continues regulation 20 of the EEA Regulations “for the purposes of considering and, where appropriate, granting an application for a derivative residence card which was validly made in accordance with the EEA Regulations 2016 before commencement day”. That does not apply in this case as the Respondent had already considered and refused the Appellant’s application before that date. However, this provision indicates that it remains open to the Respondent to issue a derivative residence card even after the revocation of the EEA Regulations.

Paragraph 4 of Schedule 3 thereafter provides that the provisions of the EEA Regulations specified in paragraph 6 continue to apply despite the revocation of the EEA Regulations with the modifications there set out in order to determine whether an application as referred to in paragraph 3 should be granted.

Paragraph 5 of Schedule 3 is headed “Existing appeal rights and appeals” and is therefore particularly important for my purposes. Paragraph 5(1) is of some importance and so I set it out so far as relevant to the issue which here arises:

“Existing appeal rights and appeals

5.

—(1) Subject to sub-paragraph (4), the provisions of the EEA Regulations 2016 specified in paragraph 6 continue to apply—

(a)

to any appeal which has been brought under the Immigration (European Economic Area) Regulations 2006 and has not been finally determined before commencement day,

(b)

to any appeal which has been brought under the EEA Regulations 2016 and has not been finally determined before commencement day,

(c)

in respect of an EEA decision, within the meaning of the EEA Regulations 2016, taken before commencement day, or

(d)

in respect of an EEA decision, within the meaning of the EEA Regulations 2016 as they continue in effect by virtue of these Regulations or the Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, which is taken on or after commencement day.

Paragraph 6 of Schedule 3 then sets out the specified provisions of the EEA Regulations 2016. As the Tribunal pointed out in James, neither regulation 16 nor 20 of the EEA Regulations are included in that schedule. Regulation 36 relating to appeal rights is. It appears that the Tribunal was not addressed about the relevance of that. It is particularly important because schedule 2 to the EEA Regulations is also amongst the provisions continued as modified. At paragraph 6(cc), the modifications to that schedule are set out as follows:

“(aa) in relation to an appeal within paragraph 5(1)(a) to (c), in each of paragraphs 1 and 2(4), the words ‘under the EU Treaties’, in so far as they relate to things done on or after exit day but before commencement day, were a reference to the EU Treaties so far as they were applicable to and in the United Kingdom by virtue of Part 4 of the EU withdrawal agreement;

(bb) in relation to an appeal within paragraph 5(1)(d), in each of paragraphs 1 and 2(4), the words ‘under the EU Treaties’, were a reference to ‘under the Immigration (European Economic Area) Regulations 2016 as they are continued in effect by these Regulations or the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020, or by virtue of the EU withdrawal agreement…”

Those provisions are of importance as they draw a distinction between appeals which arise before or are against decisions taken before 31 December 2020 (paragraphs 5(1)(a) to (c)) and those against decisions taken after 31 December 2020 (paragraph 5(1)(d)).

That these provisions have relevance is confirmed by the Respondent’s supplementary skeleton argument in this case. That points out that regulations 16 and 20 are not preserved under paragraph 6 of Schedule 3 but also accepts that regulation 36 is saved unmodified and schedule 2 to the EEA Regulations is also saved but as modified. Unfortunately, when setting out how the modifications apply (to the wording of section 84 Nationality, Immigration and Asylum Act 2002 - “Section 84” -as incorporated by schedule 2 to the EEA Regulations) the Respondent has referred to the amended wording as applies to an appeal under paragraph 5(1)(d) of Schedule 3 and not to an appeal under paragraph 5(1)(c) of Schedule 3 (as is this appeal).

Applying paragraph 6(cc)(aa) of Schedule 3 to the wording of schedule 2 to the EEA Regulations and Section 84 produces the following result:

“SCHEDULE 2

APPEALS TO THE FIRST-TIER TRIBUNAL

1.

The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the First-tier Tribunal as if it were an appeal against a decision of the Secretary of State under section 82(1) of the 2002 Act (right of appeal to the Tribunal) –

section 84 (grounds of appeal) as though the sole permitted grounds of appeal were that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom so far as they were applicable to and in the United Kingdom by virtue of Part 4 of the EU withdrawal agreement.”

I do not need to set out the remaining references to modifications to schedule 2 to the EEA Regulations. Broadly, they permit the Tribunal to consider matters as if section 84 included a ground of appeal on the above (modified) basis.

The issue then is how the fourth part of the EU withdrawal agreement (“the Withdrawal Agreement”) applies (if at all) to this case. Part Four of the Withdrawal Agreement is concerned with transitional provisions which apply during the transition or implementation period between the date of the Withdrawal Agreement and 31 December 2020. It is no doubt for that reason that the modifications made to appeal rights under paragraph 6 of Schedule 3 distinguish as they do between decisions made and appeals brought during the transition period and decisions made after 31 December 2020.

Part Four of the Withdrawal Agreement applies “Union law” during the transition period. Certain provisions of the Treaties do not apply but none are relevant to the issues in this appeal. The Zambrano right is a derivative one which depends on Article 20 Treaty for the Functioning of the European Union (TFEU). The TFEU is undoubtedly part of “the EU Treaties”. It is continued in force during the transition period. It would appear therefore that the right of appeal against a decision made prior to 31 December 2020 continues in force until finally determined (see in that regard paragraph 5(2) of Schedule 3).

I have carefully considered how that interpretation is consistent with the removal of regulations 16 and 20 of the EEA Regulations which, as the Tribunal pointed out in James, are not part of the EEA Regulations which are preserved by the 2020 Regulations. However, the ground of appeal is not whether the Respondent’s decision is contrary to the EEA Regulations but whether it accords with the EU Treaties (as now modified by what is said in paragraphs 5 and 6 of Schedule 3). As the Respondent points out in her supplementary skeleton argument, the impact of the modifications made by paragraph 6(cc) of Schedule 3 is broadly that, in relation to an application made to the Respondent before 31 December 2020 but not decided before that date, an appellant can appeal only on the basis that the Respondent’s decision breaches the EEA Regulations (which no longer include regulations 16 and 20 as a result of paragraph 6 of Schedule 3) or the Withdrawal Agreement (which no longer confers any Zambrano right to reside). However, in relation to decisions taken prior to 31 December 2020 (as here) and appeals against decisions brought but not determined prior to 31 December 2020 an appellant continues to have a right of appeal on the basis that the Respondent’s decision breaches the EU Treaties as they applied prior to withdrawal.

For those reasons, I have concluded that the Appellant continues to have an appeal which this Tribunal has the jurisdiction to determine.

I am fortified in my conclusion by the general interpretation provisions of the EEA Regulations as those are modified by the 2020 Regulations. Consistently with the way in which schedule 2 to the EEA Regulations has been modified as set out above, regulation 2 of the EEA Regulations is also modified to state (in summary) that things done between exit day and commencement day refer to rights conferred by the EU Treaties as continued in force during that period by Part Four of the Withdrawal Agreement but after commencement day references to the EU Treaties are omitted. It is worthy of note that the modifications do not remove the reference under the definition of an “EEA decision” to a derivative residence card.