Rights of appeal
Followings are the rights of appeal under the EU Settlement Scheme.
- Where the person has applied for leave under the EUSS
- Where the person has applied for leave under the EUSS Family or Travel Permit
- If there is curtailment and cancellation of pre-settled status
- If there is cancellation or revocation of settled status
- Where a decision is made in connection with a EUSS Family Permit or Travel Permit
Where the person has applied for leave under the EUSS or for EUSS Family or Travel Permit
Anyone who makes a valid application under the EUSS on or after 31 January 2020 has a right of appeal where they are refused or where they are granted pre-settled status and believe they qualify for settled status. The grounds of appeal are either:
That the decision breaches any right which the person has under “the agreements”, which means either: the EU withdrawal agreement or the EEA EFTA separation agreement or the Swiss citizens’ right agreement or that the decision is not in accordance with the relevant immigration rules which means:
- Family Permit Immigration Rules UNDER (Appendix EU 11 to 13, EU 14 and EU 15 to 17) Or
- EU Settlement Scheme Travel Permit under Immigration Rules
Curtailment and cancellation of pre-settled status
Where a person has been granted pre-settled status under the EUSS and a decision is taken on or 31 January 2020 to curtail that leave or to cancel that leave, there is a right of appeal against that decision. The grounds of appeal relating to the curtailment or cancellation of pre-settled status are that the decision breaches any right which the person has under the agreements or the decision was not in accordance with the Immigration Rules by virtue of which it was made. The relevant Immigration Rules are in Annex 3 to Appendix EU and Appendix EU (FP).
Cancellation or revocation of settled status
Where a person is granted settled status under the EUSS and a decision is taken to cancel or revoke that indefinite leave to remain on or after 31 January 2020, so that the person does not have settled status, there is a right of appeal against the decision. The grounds of appeal in relation to the cancellation of indefinite leave to remain are: that the decision breaches any right which the person has under the agreements or the decision was not in accordance with the Immigration Rules by virtue of which it was made. The grounds of appeal in relation to the revocation of settled status are:
- that the decision breaches any right which the person has under the agreements or
- that the revocation of indefinite leave to remain is not in accordance with section 76 (1) or (2) of the 2002 Act
Rights of appeal where a decision is made in connection with EUSS Family Permit or Travel Permit
Where a person has been granted a EUSS family permit or travel permit and a decision is taken to cancel or revoke that permit on or after 31 January 2020, there is a right of appeal against the decision.
Where a person has arrived in the United Kingdom with a valid EUSS Family Permit, which converted to leave to enter on their arrival in the UK, and the decision is taken on or after 31 January 2020 to cancel that leave to enter or to curtail that leave to enter, there is a right of appeal against the decision.
Where a person has been granted an EUSS family permit and a decision is taken on or after 31 January 2020 to refuse them leave to enter the United Kingdom under Article 7(1) of the Immigration (Leave to Enter or Remain) Order 2000, there is a right of appeal. The grounds of appeal are:
- that the decision breaches any right which the person has under the agreements or
- it is not in accordance with the provisions of the immigration rules by virtue of which it was made
Who will hear the appeal?
An appeal made under the Citizens’ Rights Appeals Regulations is usually to be to the First-tier Tribunal (Immigration and Asylum Chamber). The only exception is where it is certified under Schedule 1 of these regulations as having been taken in the interests of national security, in which case the appeal would be to the Special Immigration Appeals Commission.
Places from which an appeal may be brought or continued
Any appeal made under the Citizens Rights Appeals Regulations can be brought from within the United Kingdom or from outside the United Kingdom. The only exception is where it is certified under Schedule 1 of these regulations as having been taken in the interests of national security, in which case it can only be brought from out of the country unless the appellant has made human rights claim while in the UK and there is no certification under regulation 15(4).
Time limits to appeal
First-tier Tribunal
Where the person is in the UK when they are sent the decision notice, they have 14 calendar days to appeal to the First-Tier Tribunal, from the date the decision is sent. Where the person is outside the UK when they are sent the decision notice, they have 28 calendar days to appeal from when they receive the decision.
Administrative review
There is a right of administrative review in respect of certain decisions made under the EUSS. An appeal can be lodged at the same time as administrative review. Where a person applies for an administrative review and is unsuccessful then they will be able to appeal the original decision, provided they have not already appealed that decision. Where they are within the United Kingdom when they are sent their administrative review decision, they have 14 calendar days to appeal the original decision from the date the administrative review decision is sent. Where they are outside the United Kingdom when they are sent their administrative review decision, they have 28 calendar days to appeal the original decision from when they receive the administrative review decision.
When is an appeal abandoned?
EU Settlement Scheme appeals
An appeal under the Citizens Rights Appeals Regulations is abandoned where leave to enter or remain is granted under the EUSS, unless the person has been granted pre-settled status and:
- they give notice that they wish to appeal on the grounds they should have been granted settled status or
- their settled status has been revoked and they wish to continue the appeal on the ground it should be restored
Where a person has brought an appeal under the Citizens’ Rights Appeals Regulations leaving the United Kingdom does not abandon the appeal.
Immigration status during appeals
What is the immigration status of an applicant during the process of appealing the decision?
Under section 3C of the Immigration Act 1971, leave is statutorily extended where a person had leave when they made an application or claim and that leave expired prior to the Secretary of State making a decision on the application or claim.
Leave is extended until any appeal against refusal is finally determined. Section 3D of the 1971 act provides for the extension of leave until any appeal is determined where a person’s leave is varied so that no leave remains.
Where the right of appeal is exercised from within the UK, section 78 of the 2002 act provides that the appellant will not be removed while the appeal is pending.