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EU law still applies in legacy appeals under the EEA Regulations


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Geci (EEA Regs: transitional provisions, appeal rights) Albania [2021] UKUT 285 (IAC) is another appeal under the Immigration (European Economic Area) Regulations 2016, but with “highly unusual” facts. Mr Geci had returned to the UK in breach of a deportation order (twice). Rather than seeking to enforce the deportation order, the Home Office decided to refuse to issue a residence card pursuant to regulation 24 of the EEA Regulations. The Upper Tribunal found that it had no power to do so.

Post-Brexit relevance of the EEA Regs

The Upper Tribunal helpfully explains the position with EU free movement law post-Brexit, which has left us all slightly adrift in recent times. (But see Iain’s briefing on the subject.)

The tribunal noted that the EEA Regulations were withdrawn under the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 on 31 December 2020. But parts were preserved for certain purposes by three separate instruments, as highlighted in paragraph 5 of the judgment:

(a) The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020 1309), (“the EEA Transitional Regulations”),

(b) The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020; and,

(c) The Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 (“Citizens’ Rights Restriction Regulations”).

Each instrument preserved a different subset of the regulations, for the purposes covered by that particular instrument. 

In this case, the residence card refusal happened in November 2019, followed by an appeal to the First-tier Tribunal that was dismissed in January 2020. The onward appeal to the Upper Tribunal took place after 31 December 2020 and the revocation of the EEA Regulations, but fell to be considered under paragraph 5(1)(b) of Schedule 3 of the EEA Transitional Regulations:

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…

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

The only ground of appeal available to Mr Geci was whether the decision under appeal breached his EU law rights, specifically Directive 2004/38/EC (preserved by Part 4 of the EU-UK Withdrawal Agreement). Article 9 of that Directive deals with administrative formalities for non-EU family members, and Article 10 with when residence cards ought to be issued to such family members.

No basis in EU law for denying a residence card

The judge concluded that, as it was not disputed that the appellant had a right of residence under the Directive (as he was the spouse of an EU national exercising treaty rights in the UK), then he had to be issued with a residence card. This is because the Directive does not permit a refusal to issue a residence card on public policy, public security or public health grounds. What it does permit is for people to be removed on those grounds — but the Home Office had not invoked those powers in making its decision.

Both Articles 9 and 10 of the Directive require that somebody must be issued a card as confirmation of a right of residence…

Accordingly, I am not satisfied that there is any proper basis on which under the Directive or for that matter the EU Treaties that the Secretary of State has the right to refuse to issue a card as confirmation of the rights that a person holds. That is entirely different from the situation where someone’s rights of residence have been restricted, curtailed or cancelled on grounds of public policy, public security and so on, set out in Article 27(2).

The judge did suggest in his concluding remarks that there was nothing to stop the government taking enforcement action after issuing the residence card: “the Secretary of State… would appear to have the power to expel or remove the appellant, subject to any right of appeal”.

This case underlines the ongoing complexities for historical cases with outstanding appeals. It also serves as a reminder that the EEA Regulations 2016 still have to be read in accordance with the Directive. If they are found to be incompatible, then the regulations will be disapplied.

The official headnote

(1) The Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) were revoked in their entirety on 31 December 2020 by paragraph 2(2) of Schedule 1(1) to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.

(2) Many of the provisions of the EEA Regulations are preserved (although subject to amendment) for the purpose of appeals pending as at 31 December 2020 by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020 1309), (“the EEA Transitional Regulations”). The preserved provisions and amendments made are set out in paragraphs 5 and 6 of Schedule 3 to the EEA Transitional Regulations.

(3) The effect of the amendments is that the sole ground of appeal is now, in effect, whether the decision under appeal breaches the appellant’s rights under the EU Treaties as they applied in the United Kingdom prior to 31 December 2020.

(4) The issue of a residence card is an administrative matter. Although the Secretary of State does have power under the EEA Regulations to refuse to issue a residence card on grounds of public policy, public security or public health, she does not have the right to do so under Directive 2004/38/EC or the EU Treaties.

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Samina Iqbal

Samina Iqbal is barrister at Goldsmith Chambers. She is a senior public law and immigration practitioner with over 20 years’ experience, having specialised since 2000 in immigration law with a background in family law.