A bit of a law geek post here, but one of the surprising omissions from the new 2014 Act is how EEA appeals will be dealt with. The thing is EEA appeals are generally governed by the Immigration (European Economic Area) Regulations 2006. For an extremely helpful consolidated version of these regulations see here (kudos to the creator of this webpage, its really useful)
However, whilst it is possible to appeal against an EEA decision and whilst an Immigration Judge will have regard to the regulations and (hopefully) the Citizen's Directive when determining an appeal, the actual legal structure of the appellate process is given effect by utilising sections of the Nationality, Immigration and Asylum Act 2002.
The 2002 Act in effect creates the Tribunal by statute. As a result the EEA regulations under Schedule 1 give effect to provisions under the 2002 Act to an EEA appeal: 'as if it were an appeal against an immigration decision under section 82(1) of that Act.'
I am very far from an academic lawyer and I am sure there is a complex public law justification for why this must be, but essentially the EEA regulations depend on the adoption of provisions of the 2002 Act so that the Tribunal appellate structure can operate in law. This is particularly with respect to grounds of appeal, jurisdiction to consider evidence and onwards appeals (Sections 84, 85 & 87 etc.).
So far so good. However the problem is that the 2014 Act replaces sections 82 and 84 (and others). It replaces them with sections (under section 15 of the Immigration Act 2014) which make no sense whatsoever in terms of an EEA appeal, such as deleting the ground of appeal that 'that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom.' Perhaps more fundamentally, section 82 is being replaced in such a way that an EEA appeal now seems impossible since its not listed as one of the circumstances under which an appeal can be mounted.
I am quite prepared to accept I have just missed something, but this seems to be a serious flaw. It would mean that schedule 1 of the EEA regulations would have to somehow preserve the 2002 act as it stood before the 2014 Act amends.
Of course we know that so far the 2014 Act has not been brought into force in relation to appeals, except in limited circumstances, perhaps this is one reason why?
I would love to hear any other views on this- is this just a massive clanger?
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