Explanatory Notes

Clause 11: Appeals etc against citizens’ rights immigration decisions

158 Articles 18 and 21 of the Withdrawal Agreement, and Articles 17 and 20 of the EEA EFTA Separation Agreement, provide for a right of judicial redress against decisions refusing to grant residence status under the EU Settlement Scheme, or to restrict residence rights.

159 The effect of Article 20 of the Withdrawal Agreement, and Article 19 of the EEA EFTA Separation Agreement, is to provide for a right of judicial redress against restrictions on rights of entry to the UK for frontier workers and those continuing a course of planned healthcare treatment.

160 Article 8 of the Swiss Citizens’ Rights Agreement provides for similar rights of judicial redress.

161 This clause provides a Minister of the Crown with a power to make regulations to make provision for, or in connection with, appeals against:

a. a decision made in connection with entry clearance by virtue of relevant entry clearance immigration rules;

b. a decision made in connection with leave to enter or remain by virtue of residence scheme immigration rules;

c. a decision made in connection with entry clearance for the purposes of acquiring leave to enter or remain in relation to a healthcare right of entry;

d. a decision made in connection with leave to enter or remain in relation to a healthcare right of entry;

e. a decision made in connection with a right to enter or remain by virtue of regulations for frontier workers;

f. a decision to make, or a refusal to revoke a deportation order under section 5(1) of the Immigration Act 1971 in relation to a relevant person; and

g. any other decision made in connection with restricting the right of a relevant person to enter the United Kingdom (citizens’ rights immigration decisions).

162 This power may also be used to make provision for, or in connection with, reviews (including judicial reviews) of decisions within (g) above.

163 Furthermore, it may be used to give effect to amendments to the Withdrawal Agreement and the EEA EFTA Separation Agreement adopted by the Joint Committee falling within the scope of the matters provided for by this clause.

164 Subsection (1) states that a Minister of the Crown may make regulations to make provision for, or in connection with, appeals against citizens’ rights immigration decisions.

165 Subsection (2) defines ‘citizens’ rights immigration decisions’ in connection with which a Minister of the Crown may make appeals regulations under this clause.

166 Subsection (3) states that a Minister of the Crown may make regulations to make provision for, or in connection with, reviews (including judicial reviews) of decisions within subsection 2(g).

167 Subsection (4) states that the power to make regulations under this subsection (1) or (3) may, among other things, be exercised by modifying any provision made by or under an enactment. Subsection (5) gives an example of this providing that regulations made under the power may, for example, apply with or without modifications any enactment which applies in relation to appeals under section 82 of the Nationality, Immigration and Asylum Act 2002 or section 2 of the Special Immigration Appeals Commission Act 1997. This power will be used for example to provide for certification of appeals including on national security grounds.

168 Subsection (6) defines a ‘healthcare right of entry’ for the purposes of subsection (2) as a right to enter the UK that a person has by virtue of Article 32(1)(b) of the Withdrawal Agreement, Article 31(1)(b) of the EEA EFTA Separation Agreement, or Article 26a(1)(b) of the Swiss Citizens’ Rights Agreement.

169 Subsection (7) defines a ‘relevant person’ for the purposes of subsection 2(f) and (g) as a person to whom Article 20 of the Withdrawal Agreement, Article 19 of the EEA EFTA Separation Agreement, or Articles 17 or 20(3) of the Swiss Citizens’ Rights Agreement applies, or, if they do not fall within these Articles, a person who has entry clearance granted by virtue of relevant entry clearance immigration rules, has leave to enter or remain granted by virtue of residence scheme immigration rules or otherwise has leave to enter granted after arriving with entry clearance granted by virtue of relevant entry clearance immigration rules.

170 Subsection (8) states that references in subsection 7(b) to a person who has entry clearance or leave to enter or remain include references to a person who would have had entry clearance or leave to enter or remain but for the making of a deportation order under section 5(1) of the Immigration Act 1971 or any other decision made in connection with restricting the right of the person to enter the UK.

171 Appeal rights set up under this power will be to the First-tier Tribunal (Immigration and Asylum Chamber) with an onward right of appeal with permission to the Upper Tribunal on a point of law.

172 The Immigration and Asylum Chamber currently hears appeals in respect of protection and human rights claims and appeals under the EEA Regulations 2016. The procedure for residence scheme appeals (including the time limits for appealing) will be covered by the Tribunal Procedure Rules. The Tribunal Procedure Rules set out the rules of procedure of the First-tier Tribunal, including service of documents, the procedure for summoning witnesses, how the Tribunal may receive evidence, and other such procedural matters.

 

Prepared 19th December 2019