These appeals concern the Upper Tribunal’s examination of legal issues surrounding the Home Secretary’s authority to deport EEA nationals who have resided in the UK since before Brexit and the rights of appeal. These cases involved individuals who had criminal convictions before Brexit and were facing deportation as a consequence. The main issue revolved around how individuals could use previous EU laws in their appeals against deportation for conduct that occurred before Brexit.
ZA – Mr Abdullah (ZA), a Dutch citizen, arrived in the UK in 2008 and was convicted of grievous bodily harm in July 2021. Despite applying for the EU Settlement Scheme (EUSS) before the grace period ended, his application was denied, along with his human rights claim. The tribunal determined that the correct procedure should have first assessed whether he had exercised Treaty Rights or acquired permanent residence before December 31, 2020, under the Withdrawal Agreement. If so, his conduct would be evaluated under specific regulations for deportation justification. If not, his residency status before December 31, 2020, and whether it spanned a continuous five-year period would determine EUSS eligibility and associated protections.
AS – Mr. Szuba (AS), a Polish national, had been residing in the UK since 2007 and was convicted of drug-related offenses in October 2020. e Home Secretary sought to deport him under Section 32 of the 2007 Act. Mr. Szuba countered with a human rights claim, citing his EU Settlement Scheme (EUSS) application in 2020.The Upper Tribunal clarified that his appeal fell under human rights law (Section 82 of the 2002 Act), not the EUSS or EEA Regulations. They could indirectly consider EEA Regulations through Appendix EU, but the issue remained adherence to human rights and proportionality, as per the Razgar case.
RR – Mr. Rudokas (RR), a Lithuanian national, held settled status under the EUSS but faced deportation following criminal convictions in 2022. His appeal based on Article 8 grounds initially succeeded but was later found to have procedural and legal errors by the Upper Tribunal. the Tribunal highlighted that raising human rights issues during the appeal was a new matter not properly addressed Ultimately, the Home Secretary authorized the consideration of the human rights claim as a new issue, which will be reheard by the First-tier Tribunal.’
The Upper Tribunal has produced a head note providing guidance to establish whether an appellant is entitled to pre-Brexit protection. It emphasized the importance of ascertaining if the decision to deport someone was made in accordance with the EU Settlement Scheme (EUSS) or the previous EEA Regulations. There is no right of appeal under the old rules if the decision was not made using them. Furthermore, individuals who did not apply for the EUSS are ineligible to use those rules for an appeal. The Tribunal considered factors such as the individual’s place of living, the reason for their deportation, and whether they had applied to the EUSS to decide if they could appeal.
This case creates a model for future similar circumstances where EU citizens face deportation and want to use laws from pre-Brexit. The detailed advice from the Tribunal ensures individuals have a better understanding of decisions made and the right rules and steps in deportation cases after Brexit.
If you have any queries or require support with your immigration matter, please feel free to contact Lumine Solicitors on 020 39502246 or Contact Us HERE
This case involved Mr. and Mrs. Nagdev (the appellants), Indian nationals, who applied for permanent residence cards in the UK under the Immigration (European Economic Area) Regulations 2016. Their son (the sponsor), Kapil Nagdev, previously held Austrian citizenship and obtained permanent residence status. However, his Austrian citizenship was revoked in 2012. In 2020, the appellants applied for permanent residence cards but were refused in 2021 due to inadequate evidence of their son’s identity and nationality, and the Austrian passport they submitted had expired in 2015.
The main issue revolved around whether it was proportionate to revoke the appellant’s permanent residence cards under EU law. Specifically, the Tribunal needed to determine whether the procedural safeguards outlined in the Citizens’ Rights Directive applied to their situation, especially in cases where no explicit expulsion decision had been made.
The First-tier Tribunal ruled in favour of the appellants, finding the Secretary of State’s decisions disproportionate. However, the Upper Tribunal overturned this decision, determined that the judge erred in considering proportionality without an expulsion decision, and concluded that procedural safeguards did not apply in its absence.
Lumine Solicitors highlight that this case clarifies that procedural safeguards and proportionality considerations do not come into play without an expulsion decision.
If you have any queries or require support with your immigration matter, please feel free to contact Lumine Solicitors on 020 39502246 or Contact Us HERE
Family Law
Housing and Property Law
Immigration Law
We offer the dedicated support and advice you require from the very outset of your matter.
