EEA nationals and their family members have certain rights conferred to them by the Charter of Fundamental Rights of the European Union (EUCFR). Where an EEA national or their family members have received an unfavourable immigration decision i.e. an EEA application refused by the Home Office, they may exercise their right to appeal against the said decision. However, this right may be exercised only where the appellant (person who is appealing against a decision) satisfies certain requirements as stipulated under ‘The Immigration (European Economic Area) Regulations 2016’.

The requirements to be fulfilled are as follow:

• Where the appellant is an EEA national
• Produce a valid EEA national identity card
• Where the appellant claims to be in a durable relationship with EEA national (family members of EEA nationals).
• A valid passport
• Sufficient evidence that they are in a relationship with that EEA national

Appellants satisfying the abovementioned conditions may appeal against an immigration decision to the First-Tier tribunal.

The main point in question is whether filing such an appeal would grant them the right to remain in the UK during the pendency of a decision on their appeal application.

The ‘The Immigration (European Economic Area) Regulations 2016’ state that only certain EEA nationals and their family members would be able to remain in the UK during the pendency of their appeal proceedings. These are the ones that do not have one of the following an EEA decision against them:

(a) a refusal to be admitted to the UK;
(b) to revoke that person’s admission to the United Kingdom;
(c) an exclusion order besides that person;
(d) refusal or revocation of a deportation or exclusion order against the person;
(e) where a decision is taken when the person was outside the UK or
(g) where a person entered the UK in breach of a deportation or exclusion order

In cases where the appellant satisfies any of the circumstances as mentioned above, they would not be allowed to appeal while remaining in the UK, except where that person:

• holds a valid EEA family permit, registration certificate, residence card, derivative residence card, a document certifying permanent residence, permanent residence card or qualifying EEA State residence card on arrival in the United Kingdom, or can otherwise prove that the person is resident in the United Kingdom
• the person was deemed to not have been admitted to the UK but has been in-country for at least 3 months as on the date on which notice of the decision to refuse admission is given.

As per the decision for an EEA application refused in Isufaj (PTA decisions/reasons; EEA reg. 37 appeals) [2019], UKUT 283 (IAC) states:
“The decision to allow an appellant who has a pending appeal which falls within regulation 37(1)(a) to (g) to enter the UK (temporarily to attend the appeal hearing) is in the hands of the Secretary of state.”

Thus, we understand that the decision to allow an appellant to enter or remain in the UK during the pendency of an appeal decision is a discretionary power granted to the Secretary of State. There is no provision which allows the appellants to remain in the UK as of right during the pendency of their immigration appeal decision.

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