In Silva v SSHD, 11 November 2021, the High Court declared that a decision to deport under the Immigration (European Economic Area) Regulations 2016 not end the right of residence protected by the UK-EU Withdrawal Agreement. With the agreement of the Secretary of State, the court declared that regulation 23(9) of those Regulations is of no effect where the deportee is protected under Article 18 of the Withdrawal Agreement.
Where the Home Office has taken a decision to remove an EEA national or other person with rights under the 2016 Regulations - on the grounds of public policy, public security, public health, or misuse of rights - then regulation 23(9) says that decision "has the effect of terminating any right to reside otherwise enjoyed by the individual concerned".
On the face of it, regulation 23(9) automatically terminates the right to reside immediately, even while the person appeals the decision. They would immediately become a 'person subject to immigration control', subject to the hostile enviroment. They could not work legally or claim means-tested social security benefits. They would be unable to obtain a driving licence or open a bank account. Regulation 23(9) has been in force since 2017 when the 2016 Regulations came into effect - it had no equivalent in the 2006 Regulations they replaced.
Mr Silva is a 19 year-old Portuguese citizen, who has lived in the UK since birth. The Home Office was considering making a decision to deport him because of criminal convictions. When the Parole Board considered releasing him, the Home Office advised - based on regulation 23(9) - that “even in the event of an appeal against any future Deportation Order he would not be able to have recourse to public funds while that appeal was heard”. The Home Office then made a decision to deport Mr Silva, which he appealed.
While the appeal was pending, Mr Silva brought a claim for judicial review that regulation 23(9) is of no effect because Chapter VI of the EU Citizens Directive only allows for restrictions on the right to reside which are strictly necessary, on a case-by-case basis. For people residing with EU rights on 31 December 2020, the EU Citizens Directive rights continue under Part 2 of the Withdrawal Agreement, which has direct effect in UK law under section 7A of the European Union (Withdrawal) Act 2018.
The Home Office conceded that regulation 23(9) was overriden by the EU Citizens Directive provisions under the Withdrawal Agreement - at least for someone like Mr Silva who is appealing the deportation decision. They also agreed that there are likely to be a significant number of simlarly affected people, who may need to show that they enjoy a right to reside to be able to work or have other rights. The Home Office agreed that a declaration of the court was desirable in the interests of legal certainty.
The Court's declaration should end the situation of doubt about the right to reside of EEA nationals and family members appealing decisions to deport under the EEA Regulations. Under the declaration, any right to reside the deportee has under the EEA Regs - as continued by the transitional provisions - is not affected pending a final judgment on appeal against the deportation decision.
The case does not decide what effect - if any - the decision to deport has on a person whose appeal has been finally dismissed. In Mr Silva's claim he argued that a decision can never have automatic effect, and that rights to reside can only be ended by enforcement of the deportation order. A decision on that issue will have to wait for such a case.
The the court's order and statement of reasons are below.
Simon Cox and Agata Patyna acted for Mr Silva, instructed by Julian Stern of Turpin Miller, solicitors.