If a European national receives a criminal conviction arising from conduct which took place before the Brexit cut-off date, how can they rely on those previous EU rules in an appeal against deportation?

The question is important because of the very large difference in the protections afforded by the previous EU law regime, and the deportation framework generally applicable in cases involving the deportation of a foreign national.

The Upper Tribunal has provided guidance on this complex question in Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 66 (IAC), involving a morass of saved European law, other domestic legislation and the Withdrawal Agreement.

Background

The Secretary of State appealed in three different cases where the appellants had succeeded in the First Tier Tribunal. The Upper Tribunal heard the three appeals together in Abdullah.

In all three cases, argued the Secretary of State, the First Tier Tribunal judges had considered the appeals under the wrong statutory frameworks.

The Upper Tribunal has produced a lengthy headnote (see below) with a checklist of questions to establish whether, and if so by which route, an appellant is entitled to the pre-Brexit level of protection.

The checklist

The key point, found the Upper Tribunal, was not just the date of the conduct leading to the conviction, but the nature of the decision that had been made by the Secretary of State giving rise to the appeal.

If, for example, a decision had been made under the now revoked Immigration (European Economic Area) Regulations 2016 (the EEA Regulations), then they would still apply via regulation 2(3) and Schedule 1 of the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020.

The case of SSHD v AA (Poland) [2024] EWCA Civ 18 is a recent example of such a decision made under the EEA Regulations, and where the lawfulness of deportation was considered by the Home Office and the courts through the lens of Regulation 27(5).

But as the Upper Tribunal makes clear, if a decision to deport is not made under the EEA Regulations, then there is no right of appeal under those regulations.

Similarly, if an application had been made for pre or settled status under the EU Settlement Scheme (EUSS), there is right of appeal against any refusal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (CRA Regulations).

However, if there had been no application under the EU Settlement Scheme, then there can be no Home Office decision and therefore no right of appeal under the relevant appeal provisions (contained in the CRA Regulations).

The status of any past or current application under the EUSS is therefore going to be important to understand in any deportation case involving a European national.

Case studies

The cases of all three appellants are to be reheard in separate tribunals where further fact-finding will be required. However, it is instructive to consider the frameworks adopted by the tribunal in respect of the decision-making procedure to be followed.

Abdullah

Mr Abdullah is a Dutch citizen in UK who arrived in the UK in 2008. He was convicted of grievous bodily harm on 30 July 2021 (the criminal conduct taking place on 28 November 2019). He made an EUSS application on 30 June 2021 (before the end of the grace period). The Home Office refused the EUSS application along with the human rights claim on 3 May 2022.

In this case there were two rights of appeal: one under the 2002 Act against the decision to refuse the human rights claim and the other under the CRA Regulations against the decision under the EUSS.

According to the tribunal, the correct sequence should have been to consider, in the context of the EUSS decision

• when or if he was exercising Treaty Rights prior to 31 December 2020; and/or
• whether he had acquired permanent residence prior to 31 December 2020.

If either of those were made out, then he would come within the scope of the Withdrawal Agreement, and consideration could then be given to whether Mr Abdullah’s conduct was such that his deportation was justified by reference to reg 27 of the EEA Regulations.

If he did not meet either of those conditions it would be necessary to ask whether he was resident prior to 31 December 2020 and if that is so, was it for a continuous period of five years. If either of those is correct, then he falls within the EUSS. And, if he had acquired five years continuous residence, would benefit from enhanced protection.

Szuba

Mr Szuba is a Polish national, in the UK since 2007 (since age 11), his most serious conviction received on 14 October 2020 for possession with intent to supply drugs and sentence to over five years imprisonment. On 24 October 2021, the Home Secretary served a notice of intention to deport him on the basis that section 32 of the 2007 Act applied.

Mr Szuba made a human rights claim in response, claiming that he had made an application to the EUSS in February 2020 (this was not accepted by the Upper Tribunal). On 23 May 2022, the Home Secretary made a deportation order, and refused the human rights claim, which Mr Szuba appealed, and made an application to the EUSS on 30 June 2022.

The Upper Tribunal found (para 126);

The decision under appeal was a human rights decision and thus the right of appeal was under section 82 of the 2002 Act. There was no decision under the EEA Regulations or under the EUSS and so there was no appeal under the CRA or the EEA Regulations. On that basis, the FtT made a significant error in concluding that the substantive law governing the appeal was the EEA Regulations… . Even had AS made an application under the EUSS in February 2020, there was no decision under those regulations which gave rise to an appeal.

The Upper Tribunal went on to find that (para 137):

We accept that, in considering a human rights appeal under section 82 of the 2002 Act, it will be necessary, following Razgar to consider whether the decision was in accordance with the law, and whether the requirements of the Immigration Rules (including EUSS) had been met, that being relevant to proportionality. 

And so the tribunal was entitled to consider the EEA Regulations, but only indirectly via Appendix EU (given how “deportation order” is defined by reference to reg. 27 of the EEA Regulations).

Rudokas

Mr Rudokas is national of Lithuania, in the UK since about 2005. He was granted settled status under the EUSS in January 2020. On 13 July 2022 he was convicted of several offences which had started on 12 October 2021. On 9 August 2022, the SSHD notified him that she intended to deport him and that he had a right of appeal under reg 6 of the CRA Regulations. On 23 August 2022, Mr Rudokas appealed on Article 8 grounds, which the First Tier Tribunal allowed on human rights grounds.

The Upper Tribunal found that (para 152):

the judge’s decision in this appeal was fundamentally misconceived. There is no reference to the CRA Regulations, nor any indication why, wrongly, it was thought that the EEA Regulations were relevant given that they had been revoked. Given that the criminal conduct that gave rise to the decision post-dated 31 December 2020, [Mr Rudokas] could not benefit from the protections offered by article 20 of the WA. Similarly, at best, the raising of human rights issues was a new matter, an issue not addressed, and the correct procedure was not followed; there was no written consent to the issue being raised and so as a matter of law, it could not be considered

In the end, the Home Secretary gave consent for the human rights claim to be considered as a new matter to be considered, and it will now be re-heard by the First-tier Tribunal.

Headnote

(A)         In an appeal where conduct prior to 11pm on 31 December 2020 gives rise to a decision to deport an EEA citizen is in issue, it is necessary to determine whether, as at 31 December 2020 (and at the point a decision is taken):

1. Was the EEA citizen resident in the United Kingdom?
2. If so, for what continuous period (as defined in reg 3 of the EEA Regulations) before that?
3. Was the EEA citizen’s residence lawful, that is, in accordance with the EEA Regulations?
4. Had the EEA citizen acquired permanent residence under the EEA Regulations?
5. Had the EEA citizen made an application under the EUSS before the end of the Grace Period, that is 30 June 2021, and
6. If so, is it pending?

(B)          The answers to these questions will determine whether the EEA citizen came within the scope of the Withdrawal Agreement, the Grace Period Regulations or the EUSS. They will also determine whether that individual is a “relevant person” for the purposes of section 3 (5A) and (10) of the Immigration Act 1971 and section 33 (6B and (6C) of the UK Borders Act 2007, as expanded by regs 3(4) and 12(1)(b) of the Grace Period Regulations.

(C)          In respect of conduct carried out prior to 31 December 2020, the EEA Regulations only apply directly to an individual (and thus gave rise to an appeal under those regulations) if:

1. The decision was taken under the EEA Regulations prior to 31 December 2020 or in connection with an application pending under the regulations; or,
2. The individual was an EEA citizen (or a family member of such a person) lawfully resident under the EEA Regs (including those who had acquired permanent residence under reg 3. the EEA Regulations) and either:
   • (i)             The decision was taken by 30 June 2021; or
   • (ii)          Was taken after that date but when a valid application under the EUSS had been made before 30 June 2021 and was still pending (but not if they had been granted leave under the EUSS); or
3. Is a person who falls within the scope of the CRRE Regulations

(D)         With the passage of time, the class of individuals falling under the EEA Regulations and entitled to a right of appeal under those provisions will diminish to very small numbers.

(E)          If a decision to deport was not made under the EEA Regulations, then there is no right of appeal under those regulations.

(F)          In an appeal under the CRA Regulations, it will be necessary to consider the application of reg.27 of the EEA Regulations. This can arise under either ground of appeal as:

1. if the EEA citizen is within the scope of the WA, then articles 20 and 21 of the WA apply;
2. if not in scope of the WA, the definition of deportation order is such that only one which is justified by reference to reg.27 of the EEA Regulations makes the EEA citizen ineligible for a grant of status under the EUSS.

(G)         There is a distinction between (1) and (2) because under the definition of deportation order under the EUSS, only 5 years continuous residence (as opposed to lawful residence under the EEA Regulations) is needed to acquire enhanced protection.

(H)         The effect of a finding that the deportation is not justified by reference to reg 27 of the EEA Regulations is that Exception 7 under section 33 of the United Kingdom Borders Act 2007 is met, and the Secretary of State’s policy is then to revoke any deportation order, at which point leave to remain under the EUSS can be granted.

(I)            If the deportation decision against an EEA citizen arises in a human rights appeal under section 82 of the 2002 Act, then that appeal should be stayed pending resolution of any outstanding application under the EUSS to allow an appeal against a negative decision to be determined as the same time as a human rights appeal.

(J)            Where an appeal has been allowed under the EEA Regulations; or, in an appeal under the CRA Regulations on the basis the deportation decision is not justified by reference to reg 27 of the EEA Regulations, it follows that any linked appeal against the same decision under section 82 of the 2002 Act will be allowed on the basis that the decision under appeal was not in accordance with the law.