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What is happening to appeals in EU free movement rights cases?
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It is all change for rights and grounds of appeal on 6 April 2015. The previous range of grounds of appeal, which included section 84(1)(d)of the Nationality, Immigration and Asylum Act 2002 — “that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom” — are on the face of it being abolished and replaced with only three grounds, all based on asylum and human rights grounds.
Does this mean that there will be no possibility of appealing EU law free movement decisions? Happily, no, it does not. The right of appeal against adverse EU rights decisions originating in the Immigration (EEA) Regulations 2006 has been separately preserved, as the Government indicated during the passage of the Bill (Hansard 3 Mar 2014 : Column 1190).
As previously, appeal rights in EU law decisions originate in the Immigration (EEA) Regulations 2006 as amended. Paragraph 26 of the regulations will continue to generate a right of appeal against “an EEA decision” as defined. Schedule 1 currently imports certain parts of the Nationality, Immigration and Asylum Act 2002 on appeals so that they apply in EU law cases. The Immigration (European Economic Area) (Amendment) Regulations 2015 (SI 2015/694) amend Schedule 1 so that the new amended parts of the 2002 Act are imported in the following (rather strange) way:
section 84 (grounds of appeal), as though the sole permitted ground 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 (“an EU ground of appeal”);
section 85 (matters to be considered), as though—
(i) the references to a statement under section 120 of the 2002 Act include, but are not limited to, a statement under that section as applied by paragraph 4 of Schedule 2 to these Regulations; and
(ii) a “matter” in subsection (2) and a “new matter” in subsection (6) include a ground of appeal of a kind listed in section 84 of the 2002 Act and an EU ground of appeal;
section 86 (determination of appeal)
In addition, the new amended section 120 notice regime is also applied, with appropriate adjustments, in EU law cases.
The effect is that there is still a right of appeal against “an EEA decision” as defined and that there is a sole ground of appeal which is that that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom. However, the new section 120 notice procedure also applies and it appears to be possible by that means to raise other grounds (albeit only asylum and human rights grounds).
Further, it is possible for an appellant on asylum and human rights grounds to raise an EU ground of appeal either by means of a section 120 notice or with the consent of the Secretary of State, as “a new matter” for the purposes of the new section 85(6) of the 2002 Act. You can read the Home Office policy on appeals covering these issues here.
I’m working on updating my ebook on the Immigration Act 2014 and will put out a notice once that work is done and it is ready. I’m minded to put it out as a second edition for new purchase.