The abandonment of an ongoing appeal seems to be a hot topic for the Upper Tribunal recently, with the case of Ammari (EEA appeals – abandonment) [2020] UKUT 124 (IAC) following on the heels of MSU and Aziz.

This time the facts concern an appeal against a refusal by the Home Office to issue a permanent residence card, based on a retained right of residence, and brought under the EEA Regulations (in this case the Immigration (European Economic Area) Regulations 2016). 

After lodging the appeal the appellant, Mr Ammari applied for and was granted “settled status” under the EU Settlement Scheme, a form of indefinite leave to remain (ILR).

Meantime the First-tier Tribunal, unaware of the grant of ILR, had considered and refused Mr Ammari’s appeal against the refusal to grant a residence card. Mr Ammari was granted permission to appeal to the Upper Tribunal, where the abandonment issue reared its head.

At the Upper Tribunal the Home Office conceded that the First-tier judge had erred in refusing the appeal, but that this was immaterial since the grant of ILR served to abandon the appeal. 

Not so, said the Upper Tribunal, based on two key aspects.

No abandonment in EEA Regulations appeals

Firstly, it noted that appeals concerning “EEA decisions” (such as the refusal of a residence card) were brought under the relevant EEA Regulations; primarily either the 2006 Regulations or the 2016 Regulations which replaced them, and not section 82 of the Nationality, Immigration and Asylum Act 2002.

Secondly, that since the drastic culling of the permitted grounds of appeal brought about by the Immigration Act 2014 (albeit with a myriad of savings and transitional provisions), it was not possible to cite EU law rights in an appeal under section 82 of the 2002 Act. 

Prior to the 2014 Act changes, it was possible to appeal against an immigration decision, for example a decision to remove someone from the UK, but cite EU law rights in the grounds of appeal. In this way the appeal would be under the 2002 Act, but still invoke EU law rights.

The tribunal confirms that in an EU law appeal under the 2002 Act, there were two separate mechanisms for the appeal becoming abandoned if leave to remain was granted during the appeal. One was under section 104 of the 2002 Act, while there were also separate provisions within the EEA Regulations for abandonment of a section 82 appeal if a resident document was issued under those regulations.,

Both of these mechanisms have now fallen away, because after the 2014 Act, the only way to assert EU law rights in an appellate process was through an appeal brought under the EEA Regulations. Neither the 2006 or 2016 Regulations contain a mechanism for an appeal brought under them to be statutorily abandoned if an appellant is granted leave to remain.

Critically, whilst both sets of regulations contain a list of provisions within the 2002 Act that can be “read across” as if applying equally to appeals brought under the regulations, section 104 (on abandonment) is not one of them. The case of Munday (EEA decision: grounds of appeal) [2019] UKUT 91 (IAC) has more details on this legislative device. 

The upshot is that Mr Ammari getting ILR did not mean that his appeal against the earlier refusal was abandoned. The Upper Tribunal proceeded to decide the case in his favour.

Why bother if he’s already got settled status?

This is a complex case with a lot of interlocking parts. The practical effect is important, since it allows appellants to continue to assert EU law rights before the tribunal, even if the Home Office have granted them settled status (or pre-settled status) during the appeals process. 

There are reasons why an appellant might want to do this. Having a permanent residence card rather than settled status can, for example, prove advantageous in citizenship applications.

That said, as the end of the Brexit transition period races towards us, and with the settled status scheme having its own regime for appeals, this issue may arise less in the coming months.

Finally, it is notable that the regulations on settled status appeals do contain provisions for the abandonment of the appeal if the appellant is granted “leave to enter or remain in the United Kingdom by virtue of residence scheme immigration rules”. But there is an exception if the question of entitlement to ILR is at issue; in other words, where the person is arguing that they were incorrectly granted pre-settled status when it should been the full settled status. This recognises that whilst the Home Office might concede a time limited grant of leave, the appellant may wish to continue to argue before the tribunal that they are entitled to ILR.