Date Legislation considered: 18 January 2024
Date Legislation in Force: 25 December 2023
Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residency
What does the legislation do?
This instrument makes a number of changes to the rules which govern procedure for immigration appeals. This report only considers those changes which are relevant to the Citizens’ Rights Agreements.
The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”) enable appeals against decision to refuse an application under the EU Settlement Scheme (“EUSS”) to be heard by the First Tier Tribunal Immigration and Asylum Chamber ( “FTTIAC”) with onwards appeals to the Upper Tribunal.
The 2020 Regulations made amendments to the FTTIAC rules concerning the time limits for appealing against a decision taken under the EUSS. Those amendments differentiated between citizens who had applied for administrative review of the refusal decision, and those who had not.
An administrative review, in the case of the EUSS, is a request to the Home Office to ask that the original decision be reviewed by a different decision maker. It was available to some unsuccessful EUSS applicants where decisions in respect of their applications were taken before 5 October 2023.
In the Summer of 2023, the Tribunal Procedure Committee ((“the TPC”) the body that makes Rules that govern practice and procedure in the Tribunals) consulted on changes to the Rules. This was due to a degree of ambiguity that had arisen concerning the ability of unsuccessful EUSS applicants to apply for an administrative review, and how that affected any right of appeal they may enjoy.
As set out in that consultation, the TPC understood that the Home Office’s working understanding of the rules as they applied at that time, was that where an unsuccessful applicant had elected to apply for an administrative review, having not also brought an appeal they would be unable to appeal until a decision had been made on the administrative review. This could take many months. There is therefore a significant cohort of applicants who wished to pursue an appeal, notwithstanding that their administrative review process had not concluded, but who would be out of time for doing so.
Whilst the TPC queried whether the Home Office’s interpretation of the rules was correct, it agreed that there was doubt over whether the rules are “both simple and simply expressed”. Their response to the consultation can be found here.
Rule 5 of this instrument amends rule 19(3D) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604) to clarify the time limits that apply to an appeal against a EUSS decision of the Home Office , where a decision on administrative review has been made, or the application for an administrative review has been withdrawn prior to a decision on administrative review having been determined.
The Explanatory Memorandum states that the amendments to rule 19(3D) “clarify that that the deadline to bring an appeal against an EUSS decision, that is also subject to an administrative review, is either (a) 14 days from the day that the decision on administrative review is sent to the applicant (28 days if the applicant is outside the UK), or (b) 14 days from the day that the applicant sends a notice of withdrawal of administrative review to the Home Office, where the applicant has not been sent a decision on administrative review by the Home Office (28 days if the applicant is outside the UK).”
The changes make it clear that unsuccessful applicants who wish to withdraw their ongoing administrative review in favour of an appeal, are able to do so within 14 or 28 days of sending their notice of withdrawal of administrative review to the Home Office.
None of the other amendments made by this instrument are relevant for the IMA purposes.
The IMA raises no issue of concern, however, any citizen 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.