This is the second post in a short series on the Zambrano judgment. The first part was Making a Zambrano application. Next time: Whither Zambrano? by Iain Palmer.

Following on from the last post on Zambrano, the position of the UK Border Agency is that a decision that a Zambrano application is invalid cannot be appealed to the immigration tribunal. Whether this is correct in law is questionable and in several cases Judges of the First-tier Tribunal Immigration and Asylum Chamber have held that there is a right of appeal against such decisions.

Is there a right of appeal?

The right of appeal in EEA rights and decision cases usually originates in paragraph 26 of the Immigration (EEA) Regulations 2006 (‘the regulations’):

26.—(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision.

Paragraph 2 of the regulations on general interpretation defines ‘EEA decision’:

“EEA decision” means a decision under these Regulations that concerns a person’s—

(a) entitlement to be admitted to the United Kingdom;

(b) entitlement to be issued with or have renewed, or not to have revoked, a registration certificate, residence card, document certifying permanent residence or permanent residence card; or

(c) removal from the United Kingdom;

The power to make the regulations is imparted by s.109 of the Nationality, Immigration and Asylum Act 2002 (if in doubt see introductory text to the regulations), which provides as follows:

109 European Union and European Economic Area

(1) Regulations may provide for, or make provision about, an appeal against an immigration decision taken in respect of a person who has or claims to have a right under any of the Community Treaties.

(2) The regulations may—

(a) apply a provision of this Act or the Special Immigration Appeals Commission Act 1997 (c. 68) with or without modification;

(b) make provision similar to a provision made by or under this Act or that Act;

(c) disapply or modify the effect of a provision of this Act or that Act.

(3) In subsection (1) “immigration decision” means a decision about—

(a) a person’s entitlement to enter or remain in the United Kingdom, or

(b) removal of a person from the United Kingdom.

On a basic level, if a person uses a Form EEA 2 as UKBA suggests then it seems reasonable to suppose that the person is making an application for a residence card, part (b) of the ‘EEA decision’ definition in the regulations. This is because the title of Form EEA 2 is ‘Application for a Residence Card’. In quite big CAPITAL letters. Right at the top of the page. Difficult to miss, really.

On a more fundamental level, the power to make the EEA regulations in s.109 of the 2002 Act makes it clear that their scope includes all aspects of entitlement to enter or remain under the Community Treaties. The regulations must therefore apply to a person relying on Zambrano. A decision that the regulations do not apply, that a person does not have the right under the Treaties that they claim or that an application is invalid in some way must surely therefore amount to an appealable decision.

Essentially, the UK Border Agency position looks like a ‘try on’. It is very clear that once the regulations have eventually been amended then an application that is rejected for any reason would attract a right of appeal. The fact that the regulations have not yet been amended is not the fault of an applicant and it does not mean that the matter in question does not fall within the scope of the regulations.

Lodging an appeal

No appeal form will be provided with a decision that an application was invalid and the correspondence will state boldly that there is no right of appeal. This is not for the UK Border Agency unilaterally to decide, however. It would be more accurate and less misleading if the correspondence were to state ‘in our opinion there is no right of appeal’.

If the applicant wants to pursue things further and attempt an appeal, the forms can be downloaded and submitted to the tribunal with the requisite fee. A Judge of the First-tier Tribunal will then need to make a preliminary decision on whether there is a right of appeal or not. A hearing may be held or it may not be, so it would be wise to submit all the arguments on the right of appeal with the notice of appeal at the outset.

What happens at an appeal?

The short answer is that the Presenting Officer withdraws the decision, usually just before the hearing takes place. This appears to be a matter of informal UKBA policy and has occurred in several cases.

Rule 17(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 provides that in the event of a decision being withdrawn, any appeal is killed stone dead:

(2) An appeal shall be treated as withdrawn if the respondent notifies the Tribunal that the decision (or, where the appeal relates to more than one decision, all of the decisions) to which the appeal relates has been withdrawn.

This unilateral capacity to kill an unwelcome appeal is of questionable legality, and the rule making power at s.106 of the 2002 Act does not expressly confer any power to make such a rule. The Court of Appeal has considered this issue, in the case of R (Chichvarkin) v SSHD [2010] EWHC 1858 (QB) and then at the Court of Appeal ([2011] EWCA Civ 91).  The case is unhelpful but does not shut the door entirely to the argument that it is an abuse of process to withdraw the decision at this very late stage, particularly to do so when the legal costs of the appeal have already been incurred. If all of the relevant information was placed before the Secretary of State in the original application and the only further evidence for the appeal is effectively updating evidence then it could be said that the Secretary of State has no need to ‘reconsider’ the decision and is in fact withdrawing the decision for administrative convenience.

If this is what transpires, an application for judicial review should be contemplated. Both the Secretary of State and the First-tier Tribunal should probably been joined as defendants. Joining the tribunal as a party would certainly assist in distinguishing the case from Chichvarkin as this was one of the reasons the court declined explicitly to examine the lawfulness of procedure rule 17(2).

Is it worth bothering?

Having a legal argument available is not the same as being able to use it. This is probably the thinking behind the virtual abolition of legal aid in social entitlement law, after all. It would take a rare applicant in this context who wished to fund both the attempted appeal in the knowledge of the difficulties it would face and also a judicial review application on an uncertain point of law against the decision to withdraw the decision and kill the appeal. This is all the more so when we know that the regulations will eventually be amended anyway, we just do not know when.

In relatively straightforward cases where the criteria for a ‘valid application’ are met but UKBA have unreasonably refused (sorry, ‘invalidated’) the application then it is certainly useful to obtain permission to work and a guarantee of non removal.

In cases where one is pushing at the boundaries of Zambrano beyond the restrictive UKBA position, it is going to be difficult to secure a final outcome until the regulations are finally amended, perhaps late in 2012. If status, permission to work and potential removal and serious issues for an applicant, an attempt at an appeal against ‘invalidity’ may well be thought justified, as may be an application for judicial review of any withdrawal of the decision leading to termination of the appeal.