Secretary of State for the Home Department v Kingsley Manyo

An EEA national who had not acquired permanent residence and was imprisoned on 31 December 2020 was not exercising Treaty Rights under Article 7 of Directive 2004/38/EC. The person was therefore not lawfully resident under the Immigration (European Economic Area) Regulations 2016 immediately before IP completion day. The saving provisions in the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 consequently did not apply. Any deportation decision had to be assessed under the domestic framework, including the Immigration Act 1971, the UK Borders Act 2007 and the Immigration Rules.

The Secretary of State appealed against a decision of First-tier Tribunal Judge Cartin, promulgated on 16 June 2022, allowing Mr Manyo’s human rights appeal. Mr Manyo, an Italian national, had been imprisoned following criminal convictions and had made an application under the EU Settlement Scheme before IP completion day.

The First-tier Tribunal held that he remained covered by the saved 2016 Regulations because he had exercised Treaty Rights before imprisonment and had made an in-time application. The central issue was whether he was lawfully resident under those Regulations immediately before 23:00 on 31 December 2020, so that deportation had to be decided under the EEA regime rather than domestic legislation.

1. The appeal was allowed in principle. The First-tier Tribunal materially erred in law. Its decision was set aside with no findings preserved, and the appeal was remitted to the Upper Tribunal for the decision to be remade.
2. Under regulations 3 and 4 of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, an applicant had to establish that immediately before IP completion day the applicant was lawfully resident under the Immigration (European Economic Area) Regulations 2016 or had acquired permanent residence. “Immediately before” referred to the circumstances at the relevant time, namely 23:00 on 31 December 2020.
3. The Tribunal applied Article 7 of Directive 2004/38/EC. An EEA national without permanent residence who was in prison at the relevant date was not working, self-employed, self-sufficient or otherwise exercising Treaty Rights. Imprisonment interrupted the continuity of residence relevant to permanent residence.
4. A registration or residence card issued on an earlier assessment did not establish lawful residence at the relevant date. It was not determinative of whether the statutory conditions were then satisfied.
5. Because Mr Manyo was not lawfully resident under the 2016 Regulations immediately before IP completion day, the saving provisions did not apply. The deportation decision therefore had to be assessed under the domestic framework, including the Immigration Act 1971, the UK Borders Act 2007 and the Immigration Rules.

The Upper Tribunal directed that the decision be remade after 21 days, with any further evidence filed and served at least seven days before the hearing.

• Upper Tribunal (Immigration and Asylum Chamber): set aside the First-tier Tribunal’s decision promulgated on 16 June 2022, with no findings preserved, and directed that the appeal be remade in the Upper Tribunal.
• First-tier Tribunal: allowed the human rights appeal against the deportation decision.