Secretary of State for the Home Department v Zain-Al-Abidin Abdullah

For deportation decisions concerning pre-31 December 2020 conduct by an EU national, the tribunal must establish residence, continuous residence, lawful residence, permanent residence and the timing and status of any EUSS application. Those findings determine whether the Withdrawal Agreement, the Grace Period Regulations or the EUSS applies, and the available appeal route.

A decision made under the EEA Regulations may be appealed under those regulations. Where the decision was made under domestic deportation legislation or the EUSS, the EEA Regulations may nevertheless be relevant through the definition of deportation order and regulation 27. A finding that deportation is not justified under regulation 27 makes the decision not in accordance with the law for a linked human rights appeal. Such an appeal should generally be stayed pending resolution of an outstanding EUSS application.

The Upper Tribunal heard three linked Secretary of State appeals concerning deportation decisions against EU nationals: Zain-Al-Abidin Abdullah, Adrian Andrzej Szuba and Rokas Rudokas. The appeals arose from First-tier Tribunal decisions which had treated the cases, in different ways, as governed by the Immigration (European Economic Area) Regulations 2016 and/or article 8 of the Convention.

The central issues were whether the respondents fell within the Withdrawal Agreement or transitional domestic protections, which appeal rights applied, whether regulation 27 of the 2016 Regulations had to be considered, and how any linked human rights appeal should proceed.

1. The Upper Tribunal allowed the Secretary of State’s appeals, set aside the First-tier Tribunal decisions and directed that the appeals be remade. The three appeals were subsequently de-linked.

2. For pre-31 December 2020 conduct, the tribunal must determine residence, the period of continuous residence under regulation 3 of the Immigration (European Economic Area) Regulations 2016, whether residence was lawful, whether permanent residence had been acquired, and whether an EUSS application was made by 30 June 2021 and remains pending. These findings determine the application of the Withdrawal Agreement, the Grace Period Regulations and the EUSS.

3. The EEA Regulations apply directly only where the decision was made under those regulations, or where the statutory transitional provisions preserve their operation for a lawfully resident person, a person with permanent residence, a timely EUSS applicant, or a person within the CRRE Regulations. A decision not made under the EEA Regulations gives no appeal under those regulations.

4. The Withdrawal Agreement protects only persons within article 10, together with persons to whom article 18 extends those rights. Mere residence sufficient for the EUSS does not itself bring a person within the Withdrawal Agreement. A more generous domestic EUSS scheme cannot alter the scope of the Agreement.

5. In a CRA Regulations appeal, regulation 27 must be considered. It applies either because articles 20 and 21 of the Withdrawal Agreement govern the appellant, or because the EUSS definition of deportation order requires the deportation to be justified by reference to regulation 27. Five years’ continuous residence under the EUSS may confer enhanced protection even where residence was not lawful under the EEA Regulations.

6. If deportation is not justified by regulation 27, the deportation decision is not in accordance with the law. A linked human rights appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 should be stayed while an outstanding EUSS application is resolved. Where the regulation 27 issue succeeds, the linked human rights appeal follows on that basis.

7. In Szuba, the First-tier Tribunal had erred by treating a human rights appeal as an EEA Regulations appeal. Its finding that an EUSS application had been made in February 2020 was unsupported by adequate reasoning and was unsustainable.

8. In Rudokas, the appeal was under the CRA Regulations. The First-tier Tribunal had no jurisdiction to determine it under the revoked EEA Regulations or on article 8 grounds, because there was no human rights decision and the alleged human rights claim was an unconsented new matter. The appeal was remitted for a fresh decision.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeals, set aside the First-tier Tribunal decisions and gave directions for remaking.
• First-tier Tribunal: allowed Abdullah’s human rights appeal but dismissed his EUSS appeal; allowed Szuba’s appeal under the EEA Regulations; and allowed Rudokas’s appeal on article 8 grounds.