EU and Human Rights Appeals for Foreign National Offenders

Stage 1 Decision to Deport

Regulation 6 of The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 provides a specific right of appeal against a decision to make deportation order against certain Foreign National Offenders (“FNOs”). Regulation 6 (2) clarifies that the right of appeal under this regulation will be granted to FNO who either: a. have leave to enter by virtue of “residence scheme immigration rules” or b. have arrived in the UK “with scheme entry clearance”.

Regulation 6 (4) clarifies that this right of appeal is still enjoyed by FNOs who could have held leave to enter or remain, but were prevented to do so due to the deportation proceedings. In usual practice, FNOs who qualify for the right of appeal under Regulation 6 (1) are served an appealable “Stage 1 Decision to Deport Notice”. An appeal can then be brought on (at least) the grounds that the Stage 1 Decision to Deport either:

a. breaches the FNOs rights under the withdrawal agreement or
b. is not in accordance with the residence scheme immigration rules.

However, by operation of Regulation 9, this “Stage 1 Decision to Deport” also provides the FNO with an opportunity to raise a human rights claim pursuant to s.120 of the Nationality, Immigration and Asylum Act 2002 within 20 working days. This then leads to two separate proceedings, one under the withdrawal agreement and the other under Article 8 ECHR (or Article 2 and 3 ECHR if applicable).

Where is the problem

An issue arises when an appeal is lodged under Regulation 6 which takes its course to the Tribunal’s case building stage, where directions are issued to the Appellant to provide their Appellant bundle and Appeal Skeleton Argument within a specified time (usually 28 days).

During the case building stage of the Regulation 6 appeal, the Appellant’s s.120 representations (containing their human rights claim) remain under consideration with the Secretary of State. The human rights claim, when refused, carries it’s own right of appeal under s.82(1) of the Nationality Immigration and Asylum Act 2002 (unless the decision is certified under section 94 of the Nationality Immigration and Asylum Act 2002). This then paves the way for a separate human rights appeal.

In some circumstances the EU appeal on its own may have insufficient merits, but it has to be pursued nevertheless, because in the event of successful human rights appeal, the FNO will still require status under the EU Settlement Scheme to maintain their residence in the UK.

What is the best practice

The best course is for the representatives of the Appellant to apply for both appeals to be linked for in order that there be a single determination.

However, it has become increasingly difficult to stay the EU appeal proceedings pending the Secretary of State’s decision on the s. 120 (human rights) representations, leading in many cases to these being appealed separately.

Usually, this stay request is made at a case management hearing of EU appeal. There are cases where the FTT refuses to stay or adjourn the matter and directions are then issued to the Appellant legal representatives to prepare for the hearing of the Regulation 6 appeal.

To avoid this situation, the best course is to make an early formal request to the Secretary of State to consent to the human rights claim being raised in EU law appeal as a “new matter”. This can be done within the ASA of EU appeal. Usually, this request then prompts the FTT to issue formal directions to the Secretary of State to provide clarify their position on consenting to a new matter. It is very likely that the Secretary of State would then consider the human rights claim (made in s.120 legal representations) sooner, and their refusal would then facilitate bringing human rights appeal. This can achieve both the EU and Human Rights appeals to be linked for one substantive hearing and determination.

Conclusion

It is important to remain on top of the deadlines applicable to both Regulation 6 and s.120 appeals, because the delay in making s.120 legal representations and communicating with the FTT in EU appeal could significantly increase the overall cost for appellants, who may already be reliant on family members, especially if still serving a custodial sentence or having no right to work. Any request for adjournment to the First Tier Tribunal should be made without delay. It should be detailed with reference to the relevant legal provisions.

 

About Author:

Muazzam is a principal solicitor at TMC Solicitors specialised in immigration, asylum law, public and EU law. He has been practising for more than 13 years.