Achref Ammari v Secretary of State for the Home Department

An appeal against an EEA decision is brought under the applicable EEA Regulations, rather than under section 82(1) of the Nationality, Immigration and Asylum Act 2002. The statutory abandonment provisions applicable to section 82(1) appeals therefore do not apply unless expressly incorporated into the EEA appeal regime.

Neither the 2000, 2006 nor 2016 EEA Regulations provided for an EEA appeal to be abandoned because the appellant was granted leave to remain or issued with EU residence documentation. Accordingly, a grant of indefinite leave to remain under the EU Settlement Scheme does not extinguish an appeal against an EEA decision under the 2016 Regulations.

The appellant, a Tunisian national, appealed against the refusal of a permanent residence card under the Immigration (European Economic Area) Regulations 2016. After lodging his appeal, he obtained indefinite leave to remain under the EU Settlement Scheme.

The First-tier Tribunal nevertheless dismissed the appeal. On appeal to the Upper Tribunal, the Secretary of State accepted that the First-tier Tribunal had erred and that the appeal should be allowed. She also ultimately accepted that the grant of indefinite leave to remain had not caused the EEA appeal to be abandoned.

The central issue was whether an appeal against an EEA decision under the 2016 Regulations must be treated as abandoned following a grant of leave to remain.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law, was set aside, and the Upper Tribunal remade the decision by allowing the appeal.

2. The legal basis of an appeal determines the applicable abandonment regime. An appeal against an EEA decision is brought under the relevant EEA Regulations, under Regulation 36(1) of the Immigration (European Economic Area) Regulations 2016, rather than under section 82(1) of the Nationality, Immigration and Asylum Act 2002. An abandonment rule confined to a section 82(1) appeal does not thereby govern an EEA appeal.

3. The earlier EEA Regulations contained provisions under which specified EU residence documentation caused a section 82(1) appeal to be treated as abandoned. Those provisions did not apply to appeals brought under the EEA Regulations themselves. The statutory abandonment provision in section 104 of the 2002 Act was not incorporated into the 2000, 2006 or 2016 EEA appeal regimes.

4. The 2016 Regulations contain no equivalent abandonment mechanism. A grant of leave to remain, including indefinite leave to remain under the EU Settlement Scheme, therefore does not cause an appeal against an EEA decision under those Regulations to be abandoned. The First-tier Tribunal, and subsequently the Upper Tribunal, retained jurisdiction: [39]–[42].

5. The First-tier Tribunal had wrongly required proof that the appellant was exercising Treaty rights as a qualified person. It also failed to recognise that time accrued with a retained right of residence counted towards the five years required for a permanent right of residence. The respondent’s refusal breached the appellant’s EU-law rights: [43]–[46].

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remade the decision in the appellant’s favour.
• First-tier Tribunal: Dismissed the appeal against the refusal of a permanent residence card on 15 July 2019.