The Immigration (Citizens’ Rights Appeals) (EU Exit) (Amendment) Regulations 2023

Date Legislation considered: 27 May 2023

Date Legislation in Force: 08 May 2023

Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residence

What does the legislation do?

The Immigration (Citizens’ Rights Appeals) (EU Exit) (Amendment) Regulations 2023 (“the 2023 Regulations”) amend the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the Principal Regulations”).

The Principal Regulations provide, amongst other matters, for a right of appeal for EU, EEA EFTA citizens and their family members against a decision to refuse, curtail or revoke status under the EU Settlement Scheme (“EUSS”).

The Explanatory Memorandum provides that the purpose of the 2023 Regulations is to:

  • Extend a right of appeal to EUSS refusal decisions where the relevant application was made before 11pm 31 December 2020 and the decision is made after 8 May 2023.
  • Extend leave during the appeals process where a person’s EUSS status is curtailed or revoked.
  • Provide a new certification power – permitting removal before the outcome of any appeal – which can be applied in EUSS cases involving abuse of rights or fraud. Abuse of rights or fraud is defined as including:
    entering, attempting to enter, or assisting another person to enter or attempt to enter, a marriage, civil partnership, or durable partnership of convenience, or
    fraudulently obtaining or attempting to obtain or assisting another fraudulently to obtain or to attempt to obtain, entry clearance under relevant entry clearance immigration rules or leave to enter or remain in the United Kingdom under residence scheme immigration rules.

There are a number of provisions of the Citizens’ Rights Agreements which are relevant to appeals:

  • Article 18(1)(r) of the Withdrawal Agreement (“WA”)/Article 17(1)(r) of the EEA EFTA Separation Agreement (“SA”) ensure that a decision to refuse status under the EUSS can be challenged by the applicant under redress procedures which allow for an examination of the legality of the decision, as well as of the facts and circumstances on which it is based.
  • Article 18(3) WA/Article 17(3) SA mean that, subject to the restrictions in Article 20(4) WA/Article 19(4) SA, an applicant’s rights are protected until their EUSS application, and any appeal are finally determined.
  • Article 20(4) WA/Article 19(4) SA mean that the UK can remove an applicant who submitted an abusive or fraudulent application to the EUSS from the UK before a final judgment has been given in any appeal against refusal of their application.


The IMA raised concerns with the Home Office in relation to the drafting of the new certification power (regulation 16A of the Principal Regulations). In particular, the IMA considered that it could be used to remove individuals from the UK before the outcome of their appeal against a decision to refuse, curtail or revoke EUSS status where they had not engaged in abuse of rights or fraud in relation to their own application.

For example, X is a French citizen, who is the next-door neighbour of Y who is Australian. X assisted Y into entering into a marriage of convenience in the UK with Z, a German citizen, before the end of the transition period. X then applies to the EUSS, and their application is refused. The IMA’s view is that regulation 16A as drafted would allow the use of the certification power in respect of the refusal of status for X, which in its view would not be compatible with the Citizens’ Rights Agreements.

The IMA discussed the issue with the Home Office who were clear that the power in regulation 16A would not generally extend to individuals in X’s position where the abuse of rights or fraud as a third party had no benefit to them in terms of their own rights under the Citizens’ Rights Agreements. However, the Home Office added that any use of the certification power in respect of abuse of rights or fraud in a third-party case would be fact specific.

The Home Office committed to providing the IMA with further information as to the use made of the power, together with a draft of the guidance to be used by caseworkers. The Home Office also committed to informing the IMA of any legal challenges where status under the EUSS is refused, curtailed, or revoked on the basis of abuse of rights or fraud in a third-party case.

Citizens who are experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal. Further information about the IMA and guidance on how to report complaints can also be found on the Website.