- BY Colin Yeo
Upper Tribunal rules post-Brexit Zambrano appeals can continue
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In a highly technical decision, Osunneye (Zambrano, transitional appeal rights) Nigeria [2023] UKUT 162 (IAC), the Upper Tribunal has concluded that Zambrano appeals may proceed notwithstanding the various Brexit regulations. The official headnote:
- Following the UK’s withdrawal from the EU, the Immigration (European Economic Area) Regulations 2016 are continued for transitional purposes by statutory instruments including the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 1309/2020).
- Paragraph 5 of Schedule 3 to the 2020 Regulations deals with “Existing appeal rights and appeals”. Paragraph 6 of Schedule 3 then sets out the specified provisions of the EEA Regulations 2016. Neither regulation 16 nor 20 of the EEA Regulations are included in that schedule. Regulation 36 relating to appeal rights is. Schedule 2 to the EEA Regulations is also amongst the provisions continued as modified. At paragraph 6(cc), the modifications to that schedule are set out.
- Those provisions draw a distinction between appeals which arise before or are against decisions taken before 31 December 2020 (paragraphs 5(1)(a) to (c)) and those against decisions taken after 31 December 2020 (paragraph 5(1)(d)).
- Contrary to the unreported decision in Secretary of State for the Home Department v Oluwayemisi Janet James (UI-2021-000631; EA/05622/2020), the right of appeal against a decision made prior to 31 December 2020 therefore continues in force until finally determined (see in that regard paragraph 5(2) of Schedule 3 to the 2020 Regulations).
- Part Four of the Withdrawal Agreement is concerned with transitional provisions which apply during the transition or implementation period between the date of the Withdrawal Agreement and 31 December 2020.
- Part Four of the Withdrawal Agreement applies “Union law” during the transition period. The Zambrano right is a derivative one which depends on Article 20 Treaty for the Functioning of the European Union (TFEU). The TFEU is part of “the EU Treaties”. It is continued in force during the transition period.
A decision to the contrary would have come as something of a surprise as it was surely not intended by the Home Office. Notwithstanding the surprising submissions made by a Home Office Presenting Officer and the outcome of a different, unreported appeal.
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