Implications of the 2015 EEA Regulations

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EEA appeals regime

The The 2014 Act restructured the rights of appeal in the 2002 Act, with the effect that is now only possible to appeal under that Act against the refusal of a human rights claim, a protection claim (humanitarian protection and asylum) and revocation of a refugee or humanitarian protection status (the tripartite grounds).

Paragraph 15 of Schedule 1 establishes that section 84 (grounds of appeal) of the amended 2002 Act will apply to the 2006 Regulations as though the sole permitted ground of appeal is that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom.

However, it will be possible for an appellant to raise one of the tripartite grounds of appeal in the context of an EEA appeal; first in response to a notice served by the Secretary of State under section 120 of the 2002 Act and secondly, as a “new matter” under section 85(6) of the 2002 Act.

Section 120 Notice

Paragraph 16(b) of Schedule 1 applies section 120 of the 2002 Act, as amended by the 2014 Act, to the 2006 Regulations. This permits the Secretary of State to issue a so called “section 120 notice” where she has taken, or intends to take, or may take a decision under the 2006 Regulations.

That notice will require the person upon whom it is served to provide a statement setting out any other reasons he or she has for being permitted to enter or remain in, or not be removed from, the UK.

The recipient of a section 120 notice need not repeat any reasons relating to the EEA decision, but may make additional EEA points, or include one or more of the tripartite grounds of appeal contained in section 84(1) of the amended 2002 Act. Pursuant to section 85(2) of the 2002 Act, the Tribunal shall consider any ground of appeal raised in a response to a section 120 notice.

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