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PART 5 PROCEDURE IN RELATION TO EEA DECISIONS

Person claiming right of admission

22.—(1) This regulation applies to a person who claims a right of admission to the United Kingdom under regulation 11 as—

[F1(a) a person, not being an EEA national, who—

(i) is a family member of an EEA national;

(ii)is a family member who has retained the right of residence;

(iii)has a derivative right of residence;

(iv)has a permanent right of residence under regulation 15; or

(v) is in possession of a qualifying EEA State residence card; [F2or]]

[F3(b) an EEA national, where there is reason to believe that he may fall to be excluded under regulation 19(1) [F4(1A) or (1AB)][F5; or]]

[F6(c)a person to whom regulation 29AA applies]

(2)  A person to whom this regulation applies is to be treated as if he were a person seeking leave to enter the United Kingdom under the 1971 Act for the purposes of paragraphs 2, 3, 4, 7, 16 to [F718A] and 21 to 24 of Schedule 2 to the 1971 Act M1 (administrative provisions as to control on entry etc), except that—

(a)the reference in paragraph 2(1) to the purpose for which the immigration officer may examine any persons who have arrived in the United Kingdom is to be read as a reference to the purpose of determining whether he is a person who is to be granted admission under these Regulations;

(b)the references in paragraphs 4(2A), 7 and 16(1) to a person who is, or may be, given leave to enter are to be read as references to a person who is, or may be, granted admission under these Regulations; and

(c)a medical examination is not be carried out under paragraph 2 or paragraph 7 as a matter of routine and may only be carried out within three months of a person's arrival in the United Kingdom.

(3) For so long as a person to whom this regulation applies is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to the 1971 Act, he is deemed not to have been admitted to the United Kingdom.

Textual Amendments

F7Word in reg. 22(2) substituted (28.7.2014) by Immigration Act 2014 (c. 22), s. 75(3), Sch. 1 para. 2(5); S.I. 2014/1820, art. 3(y)

Marginal Citations

M1The relevant parts of Schedule 2 were amended by Schedule 6 to the Criminal Justice Act 1972 (c. 71), paragraphs 2 and 3 of Schedule 4 to the British Nationality Act 1981 (c. 61), paragraphs 6, 8, 9 and 10 of the Schedule to the Immigration Act 1988 (c. 14), paragraphs 5, 7, 10 and 11 of Schedule 2, and Schedule 4 to the Asylum and Immigration Act 1996 (c. 49), paragraph 70 of Schedule 13 to the Access to Justice Act 1999 (c. 22), section 140 of and paragraphs 43, 56, 58 to 63 of Schedule 14, and Schedule 16 to the 1999 Act, sections 63, 64 and 73 of and paragraphs 3 and 4 of Schedule 7 to the 2002 Act, paragraph 149 of Schedule 8 to the Courts Act 2003 (c. 39), paragraph 1 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (c. 19), and S.I. 1993/1813.

Person refused admission

23.—(1) This regulation applies to a person who is in the United Kingdom and has been refused admission to the United Kingdom—

(a) because he does not meet the requirement of regulation 11 (including where he does not meet those requirements because his EEA family permit, residence card [F8, derivative residence card ] or permanent residence card has been revoked by an immigration officer in accordance with regulation 20); or

(b)in accordance with regulation [F919(1), (1A)[F10, (1AB)] or (2)].

(2)  A person to whom this regulation applies, is to be treated as if he were a person refused leave to enter under the 1971 Act for the purpose of paragraphs 8, 10, 10A, 11, 16 to 19 and 21 to 24 of Schedule 2 to the 1971 Act, except that the reference in paragraph 19 to a certificate of entitlement, entry clearance or work permit is to be read as a reference to an EEA family permit, residence card [F11, derivative residence card] [F12, a qualifying EEA State residence card, or a permanent residence card].

Textual Amendments

[F13Revocation of admission

23A.—(1) This regulation applies to a person admitted to the United Kingdom under regulation 11 in circumstances where, pursuant to regulation 19(1) (exclusion justified on grounds of public policy, public security or public health), (1A) (person subject to deportation order or exclusion order) or (1AB) (reasonable grounds to suspect that admission would lead to the abuse of a right to reside), that person was not entitled to be admitted.

(2) Paragraph 6(2) of Schedule 2 to the 1971 Act (administrative provisions as to control on entry: refusal of leave to enter) applies to a person to whom this regulation applies, as though the references—

(a)to that person’s examination under paragraph 2 of Schedule 2 to the 1971 Act were to that paragraph as applied by regulation 22(2)(a) and (c) of these Regulations;

(b)to notices of leave to enter the United Kingdom were to a decision to admit that person to the United Kingdom under these Regulations;

(c)to the cancellation of such a notice and the refusal of leave to enter were to revocation of the decision to admit that person to the United Kingdom under this regulation.

(3) Where a person’s admission to the United Kingdom is revoked, that person is to be treated as a person to whom admission to the United Kingdom has been refused and regulation 23 applies accordingly.]

Textual Amendments

Person subject to removal

24.—[F14(1) If there are reasonable grounds for suspecting that a person is someone who may be removed from the United Kingdom under [F15regulation 19(3)(b)” and for “an immigration officer” substitute “the Secretary of State], that person may be detained under the authority of an immigration officer pending a decision whether or not to remove the person under that regulation, and paragraphs 17 and 18 of Schedule 2 to the 1971 Act shall apply in relation to the detention of such a person as those paragraphs apply in relation to a person who may be detained under paragraph 16 of that Schedule.]

(2) [F16 Where a decision is taken to remove a person ] under regulation 19(3)(a), [F17or (c)] the person is to be treated as if he were a person to whom section 10(1)(a) of the 1999 Act M2 applied, and section 10 of that Act (removal of certain persons unlawfully in the United Kingdom) is to apply accordingly.

(3) [F16 Where a decision is taken to remove a person ] under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act M3 (liability to deportation) applied, and section 5 of that Act M4 (procedure for deportation) and Schedule 3 to that Act M5 (supplementary provision as to deportation) are to apply accordingly.

[F18(4) A person who enters the United Kingdom in breach of a deportation or exclusion order [F19, or in circumstances where that person was not entitled to be admitted pursuant to regulation 19(1) or (1AB),] shall be removable as an illegal entrant under Schedule 2 to the 1971 Act and the provisions of that Schedule shall apply accordingly.]

(5) Where such a deportation order is made against a person but he is not removed under the order during the two year period beginning on the date on which the order is made, the Secretary of State shall only take action to remove the person under the order after the end of that period if, having assessed whether there has been any material change in circumstances since the deportation order was made, he considers that the removal continues to be justified on the grounds of public policy, public security or public health.

(6) A person to whom this regulation applies shall be allowed one month to leave the United Kingdom, beginning on the date on which he is notified of the decision to remove him, before being removed pursuant to that decision except—

(a)in duly substantiated cases of urgency;

(b)where the person is detained pursuant to the sentence or order of any court;

(c)where a person is a person to whom regulation 24(4) applies.

[F20(7) Paragraph (6) of this regulation does not apply where a decision has been taken under regulation 19(3) on the basis that the relevant person—

(a)has ceased to have a derivative right of residence; or

(b)is a person who would have had a derivative right of residence but for the effect of a decision to remove under regulation 19(3)(b).]

Textual Amendments

Marginal Citations

M2Section 10 is amended by sections 73 to 75 of and Schedule 9 to the 2002 Act.

M3Section 3(5) is amended by paragraphs 43 and 44 of Schedule 14 to the 1999 Act.

M4Section 5 is amended by paragraph 2 of Schedule 4 to the British Nationality Act 1981 (c. 61), paragraph 2 of the Schedule to the Immigration Act 1988 (c. 14), paragraph 2 of Schedule 2 to the Asylum and Immigration Act 1996 (c. 49) and paragraph 37 of Schedule 27 to the Civil Partnership Act 2004 (c. 33).

M5Schedule 3 is amended by paragraphs 1 and 2 of Schedule 10 to the Criminal Justice Act 1982 (c. 48), paragraph 10 of Schedule 10 to the Immigration Act 1988 (c. 14), paragraph 13 of Schedule 2 to the Asylum and Immigration Act 1996 (c. 49), section 54 of, and paragraphs 43 and 68 of Schedule 14 to, the 1999 Act, paragraphs 7 and 8 of Schedule 7 to the 2002 Act, paragraph 150 of Schedule 8, and Schedule 10, to the Courts Act 2003 (c. 39), and section 34 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (c. 19).

[F21Revocation of deportation and exclusion orders

24A.—(1) A deportation or exclusion order shall remain in force unless it is revoked by the Secretary of State under this regulation.

(2) A person who is subject to a deportation or exclusion order may apply to the Secretary of State to have it revoked if the person considers that there has been a material change in the circumstances that justified the making of the order.

(3) An application under paragraph (2) shall set out the material change in circumstances relied upon by the applicant and may only be made whilst the applicant is outside the United Kingdom.

(4) On receipt of an application under paragraph (2), the Secretary of State shall revoke the order if the Secretary of State considers that [F22the criteria for making such an order are no longer satisfied].

(5) The Secretary of State shall take a decision on an application under paragraph (2) no later than six months after the date on which the application is received.]

Textual Amendments

[F23Human rights considerations and interim orders to suspend removal

24AA.—(1) This regulation applies where the Secretary of State intends to give directions for the removal of a person (“P”) to whom regulation 24(3) applies, in circumstances where—

(a) P has not appealed against the EEA decision to which regulation 24(3) applies, but would be entitled, and remains within time, to do so from within the United Kingdom (ignoring any possibility of an appeal out of time with permission); or

(b)P has so appealed but the appeal has not been finally determined.

(2) The Secretary of State may only give directions for P’s removal if the Secretary of State certifies that, despite the appeals process not having been begun or not having been finally determined, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of P’s appeal, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State may certify a removal under paragraph (2) include (in particular) that P would not, before the appeal is finally determined, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.

(4) If P applies to the appropriate court or tribunal (whether by means of judicial review or otherwise) for an interim order to suspend enforcement of the removal decision, P may not be removed from the United Kingdom until such time as the decision on the interim order has been taken, except—

(a)where the expulsion decision is based on a previous judicial decision;

(b)where P has had previous access to judicial review; or

(c)where the removal decision is based on imperative grounds of public security.

(5) In this regulation, “finally determined” has the same meaning as in Part 6.]

Textual Amendments