EEA family member: permanent residence application after refusal
Our client, a non-EEA national, initially obtained a residence card as the spouse of an EEA national. Our client subsequently divorced from his EEA national spouse and obtained a residence card under the Retained Rights route. The client then applied for permanent residence, which was refused and a subsequent appeal was dismissed by First-Tier Tribunal as the Judge wrongly thought the client needed to be a qualified person, not his EEA national spouse during the time their marriage lasted. Permission to appeal on this basis was granted.
Between the refusal and appeal, on behalf of our client, we applied for indefinite leave to remain under Appendix EU (also known as settled status). Our client successfully obtained ILR under Appendix EU. Despite this, the client still wanted to assert his rights under EU law and proceed with his permanent residence appeal.
In their Rule 24 response to the appeal to the Upper Tribunal, the Home Office asserted that the grant of IRL under Appendix EU to the Immigration Rules meant the appeal under EEA Regulations should be treated as abandoned. Sterling Law disagreed and made representations to the Home Office and Upper Tribunal on this basis. At the Upper Tribunal hearing, the Home Office conceded that an appeal under EEA Regulations cannot be abandoned by a grant of leave under domestic law. The Upper Tribunal agreed, and found as follows:
Our conclusions on the abandonment issue are as follows:
i. Under the 2006 Regulations, there was a provision under para 4(2) of Schedule 2 to those Regulations for appeals brought under section 82(1)
NIAA 2002 to be treated as abandoned where an appellant was issued with documentation confirming a right to reside in the United Kingdom under EU law. Following the changes brought about by the Immigration Act 2014, as of 6 April 2015, that abandonment provision was revoked and never replaced;
ii. There has never been provision under any of the EEA Regulations for an appeal against an EEA decision brought under those Regulations to be treated as abandoned following a grant of leave to remain or the issuance of specified documentation confirming a right to reside in the United
Kingdom under EU law;
iii. It follows that a grant of leave to remain following an application under the EU Settlement Scheme does not result in an appeal against an EEA
decision brought under the 2016 Regulations being treated as abandoned.
This means that, even if an individual has obtained leave under Appendix EU, they are still able to assert their rights under the EEA Regulation. Practically, this could have an impact on when an individual may be able to make an application for naturalisation as a British citizen, as a grant of permanent residence under EEA Regulation can be backdated, whereas a grant of indefinite leave to remain under Appendix EU cannot be.
In this case, it meant that the client received a positive decision and had his right permanent residence in the UK acknowledged.
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