[2023] UKUT 00293 (IAC)

The EUSS was established pursuant to the EU Withdrawal Agreement to make provision for the continued residence rights of EU citizens and their family members resident in the UK before 11PM on 31 December 2020. The 2020 Regulations were made by the Secretary of State under section 11 of the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act”) to provide for rights of appeal against decisions taken under the EUSS.

Appeals against EUSS decisions lie to the First-tier Tribunal, on the basis of one (or both) of two grounds of appeal specified in regulation 8(2) and (3) of the 2020 Regulations. The two grounds of appeal are each multifaceted, but, in broad terms, enable an appellant to contend that the decision breaches the rights enjoyed by the appellant under, in the case of paragraph (2), the EU Withdrawal Agreement (or the EFTA or Swiss agreements, as the case may be), and in the case of paragraph (3), the EUSS and other specified domestic primary and secondary legislation.

The 2020 Regulations do not make free-standing provision for an appellant to rely on human rights-based grounds of appeal, but instead permit an appellant to rely on a ground of appeal of a kind listed in section 84 of the 2002 Act, in the circumstances specified by regulation 9:

“9.— Matters to be considered by the relevant authority

(1)

If an appellant makes a section 120 statement, the relevant authority must consider any matter raised in that statement which constitutes a specified ground of appeal against the decision appealed against. For the purposes of this paragraph, a ‘specified ground of appeal’ is a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act.

(2)

In this regulation, ‘section 120 statement’ means a statement made under section 120 of the 2002 Act and includes any statement made under that section, as applied by Schedule 1 or 2 to these Regulations.

(3)

For the purposes of this regulation, it does not matter whether a section 120 statement is made before or after the appeal under these Regulations is commenced.

(4)

The relevant authority may also consider any matter which it thinks relevant to the substance of the decision appealed against, including a matter arising after the date of the decision.

(5)

But the relevant authority must not consider a new matter without the consent of the Secretary of State.

(6)

A matter is a ‘new matter’ if—

(a)

it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act, and

(b)

the Secretary of State has not previously considered the matter in the context of—

(i)

the decision appealed against under these Regulations, or

(ii)

a section 120 statement made by the appellant.”

For present purposes, the “relevant authority” means the First-tier Tribunal.

The grounds of appeal listed in section 84 of the 2002 Act include that listed in subsection (2):

“(2)

An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.”

“Human rights claim” is a defined term under section 113(1) of the 2002 Act:

“‘human rights claim’ means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention).”