Non-EU citizens can potentially have a deportation order against them revoked where they have acquired or could acquire rights as family members of EU nationals. Such opportunities will continue to be relevant to a specific group of people for some years to come. This post will try to unravel this tricky subject.

Who are we talking about?

Consider a non-EU citizen who was deported or served with a deportation order for a criminal offence committed before 31 December 2020. They may have acquired EU law rights that can be used to challenge deportation, for example by marrying an EU citizen living in the UK or through derivative rights prior to 31 December 2020. They may also have acquired such rights during the post-Brexit grace period (31 December 2020 to 30 June 2021).

If so, they can now apply to have the deportation order revoked, either out-of-country (if they left the UK) or in-country (if they remained in the UK). In this scenario, the revocation application should be considered under the EU law framework, as preserved and retained by various regulations (see below). This framework comes with stronger protections: the “public policy, public security or public health test”, rather than the stricter UK deportation rules that apply to everyone else.

This position is confirmed in the guidance on Public policy, public security or public health decisions dated 31 December 2020:

Individuals deported or excluded under the Immigration Acts who are now relevant persons

A deportation order or exclusion decision that was not made under the EEA Regulations 2016 (or the EEA Regulations 2006), does not extinguish a person’s admission or residence rights under the EEA Regulations 2016, as saved.

There may be individuals previously deported under section 3 of the Immigration Act 1971, including as a result of automatic deportation by virtue of the UK Borders Act 2007, who may now fall within one of the following circumstances:

• the deportation order was made before their country of nationality became an EU member state (the non-EEA deportation order may be considered as an EEA deportation order depending on the particular provisions set out in the relevant state’s accession agreement to the EU)
• they were a non-EEA national and they have subsequently been granted citizenship of an EEA country
• they are now the family member of a relevant EEA or Swiss Citizen.
• they now have a derivative right of residence

From 1 January 2021, if an individual makes an application to revoke a non-EEA deportation order from overseas, the application must be considered under the Immigration 1971 Act or the UK Borders Act 2007, unless they are a relevant person under the Agreements. If they are a relevant person, a decision to exclude must be considered under the public policy, public security or public health test [my emphasis].

The fact that these protections can outlast Brexit is similar to the way in which EU nationals themselves are protected by the old EU deportation and exclusion framework for crimes committed before 31 December 2020.

The definition of “relevant person”

The UK Borders Act 2007 has been amended to reflect this position. The newly inserted section 33(6B)-(6C) adds an extra exception to the list of those exempt from automatic deportation. In summary, Exception 7 requires someone who is a foreign criminal to demonstrate:

1. that they are a relevant person, as defined by section 33(6C), and
2. they were convicted for an offence that consisted of or included conduct that took place before 31 December 2020 at 11pm. 

This position is now also mirrored in section 3(5A) and (10) of the Immigration Act 1971 (as amended) providing for exceptions to when deportation is conducive to the public good.

So when dealing with an application to revoke a deportation order, at the initial stage you would need to look at the offending behaviour to check that this took place before 11pm on 31 Dec 2020. You can then move on to the second stage of considering whether or not the person had acquired a derivative right under the EEA Regulations 2016 prior to 31 December (or at the very least has an outstanding application made before that date), or from 1 January 2021 has pre-settled or settled status as the family member of an EU citizen.

If these conditions are satisfied then it would be good practice to make an application for recognition of their EU law rights, at the same time as requesting revocation of the deportation order with reference to EU law. But what if there is a refusal to recognise the claimed rights under EU law, and the Home Office goes on to decide the case with reference only to the UK’s domestic deportation laws for third-country nationals? 

Challenging a refusal to revoke

Such a refusal would usually be challengeable under EU law, retained under Regulation 4 of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 and Regulation 2 of the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020, depending on when the application is made.

If you are dealing with a decision which does not address the EU law claim, either because the claim was not put before the Home Office at the time of the revocation application or because officials have not addressed it, raise the claim as part of your grounds of appeal. It may be classed as a “new matter”, in which case you will have to deal with that accordingly.

But otherwise, and leaving aside the “new matter” issue, the judge can either consider the matter under EU law, or on the basis that the decision was not in accordance with the law for the purposes of Article 8(2) of the European Convention on Human Rights. The latter approach would rely on Charles (human rights appeal: scope) Grenada [2018] UKUT 89 (IAC), a case highlighted in Home Office guidance on Rights of Appeal (pdf):

Relevance of an unlawful decision: the determination in Charles

…

The question of whether a decision was in accordance with the law will nevertheless be highly relevant in many human rights appeals. Under section 84(2) of the current statutory framework, an appeal against the refusal of a human rights claim must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998. Where it is found that the claimant’s rights under Article 8(1) of the European Convention on Human Rights are engaged, the Tribunal will go on to consider whether any interference occasioned by the decision under challenge would be “in accordance with the law” for the purposes of Article 8(2). That is the point at which the lawfulness of the decision in a wider sense may now be relevant.

This may lead to the matter being remitted to the Home Office for it to make a lawful decision with reference to EU law. Alternatively, you may be able to persuade the tribunal to press on and make its own decision about whether the Home Office is acting proportionately in light of the EU law claim.