Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2025-002065
& UI-2025-002066
First-tier Tribunal Nos: DA/00364/2020
& EA/11641/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

2nd July 2026

Before

THE HON. MR JUSTICE LAVENDER, PRESIDENT
UPPER TRIBUNAL JUDGE KEITH

Between

MARIUS COSTEL COSTEA
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Cox, instructed by Wilsons Solicitors LLP
For the Respondent: Ms J Smyth KC, instructed by the Government Legal Department

Heard at Field House on 18 March 2026

DECISION AND REASONS
(1) Introduction
1. The appellant appeals against the decision of First-tier Tribunal Judge JK Swaney, sent to the parties on 10 June 2024, dismissing the appellant’s appeals against two decisions made by the respondent:
(1) The respondent’s first decision, dated 25 August 2020, was to deport the appellant pursuant to regulations 23(6)(b) and 27 of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations 2016”). The respondent made a deportation order (“the Deportation Order”) on the same day. The appellant was advised of his right of appeal under regulation 36. He exercised his right of appeal out of time, but a lawyer of the First-tier Tribunal (‘the FtT’) granted an extension of time.
(2) The respondent’s second decision, dated 24 October 2022, was to refuse the appellant’s application for indefinite leave to remain under Appendix EU to the Immigration Rules. We will refer to this as “the Appendix EU decision”.
2. In relation to both decisions:
(1) The appellant’s substantive argument before us (“the discrimination argument”) was, in very brief summary, as follows:
(a) The definition of “deportation order” in Annex 1 to Appendix EU contains provisions which create a distinction between two categories of deportation order.
(b) The effect of that distinction is that one of those categories of deportation order requires less justification than the other.
(c) Specifically, the requirement contained in regulation 27(3) of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations 2016”) that “a relevant decision may not be taken … except on serious grounds of public policy and public security” applies to one category of deportation order, but not to the other category (which is the category containing the deportation order made in respect of the appellant).
(d) There is no justification for this differential treatment, which is therefore discriminatory and contrary to: the UK-EU Withdrawal Agreement; common law; and/or Article 14 ECHR read with Article 8.
(e) Consequently, the “serious grounds” provision in regulation 27(3) should apply to the appellant’s deportation order.
(2) The respondent submitted that the discrimination argument had no merit, but also argued (“the jurisdiction argument”) that the FtT did not have jurisdiction to consider the discrimination argument.
(3) The appellant contended that the jurisdiction argument had no merit, but also:
(a) argued that, in circumstances where the jurisdiction argument had not been advanced before the FtT, we should refuse permission for it to be advanced in the Upper Tribunal; and
(b) in the alternative, invited us to treat his appeal against the Appendix EU decision as an application for judicial review of that decision.
(4) The respondent submitted that:
(a) we should allow her to advance the jurisdiction argument; and
(b) we should not treat the appeal against the Appendix EU decision as an application for judicial review of that decision.
3. Clearly, the jurisdiction argument and the issues relating to it constituted preliminary issues, with the discrimination argument being the substantive issue. Accordingly, we have considered the jurisdiction argument and related issues first. In the event, we have not found it necessary to make a decision on the merits of the discrimination argument.
4. For the reasons set out below, we have decided as follows:
(1) We permit the respondent to advance the jurisdiction argument in both appeals.
(2) In relation to the appeal against the Deportation Order:
(a) We find that the FtT had jurisdiction to hear the discrimination argument, at least insofar as it relied on the Withdrawal Agreement.
(b) In the light of a concession made by the respondent, we find that the Judge made an error of law.
(c) We allow the appeal.
(d) We remit the re-making of the appeal to the FtT.
(3) In relation to the appeal against the Appendix EU decision:
(a) We find that the FtT did not have jurisdiction to hear the discrimination argument.
(b) We dismiss the appeal.
(c) We have decided not to treat the appeal as an application for judicial review.
5. First, however, we address the background, namely the appellant’s immigration history and his litigation history.
(2) Background
(2)(a) The Appellant’s Immigration History
6. On 24 June 2021 Griffiths J gave judgment on the appellant’s application for judicial review of a deportation liability notice dated 4 August 2020: R (Costea) v SSHD [2021] 1 WLR 5223; [2021] EWHC 1685 (Admin). Griffiths J said as follows, at [6]-[20]:
“Criminal record in Romania and the UK
6 On 15 December 2006 (aged 19) he was convicted of theft and sentenced in Romania to 22 months imprisonment suspended for 34 months.
7 On 15 January 2007, he was convicted of two counts of immigration offences and sentenced in Romania to 4 months imprisonment suspended for 2 years 4 months.
8 On 17 September 2007, he was convicted at West London Magistrates Court of shoplifting and going equipped for theft. He was given an absolute discharge.
9 On 29 November 2007, he was convicted at Horseferry Road Magistrates Court of going equipped for theft and using a vehicle whilst uninsured. He was sentenced to 12 weeks in a Young Offender Institution and a fine of £100 fine or 1 day (time served). He was disqualified from driving for 6 months and his licence was endorsed.
10 On 29 January 2008, he was convicted in Romania of inflicting grievous bodily harm and was sentenced to 3 years imprisonment suspended for 5 years.
11 On 20 October 2008, he was convicted at Thames Magistrates Court of breaching his Young Offender Institution supervision order and sentenced to a fine of £75.
12 On 23 May 2014, he was convicted in Romania of causing or inciting prostitution or pornography involving a child aged 13 to 17. He was sentenced to 2 years imprisonment. This was subsequently varied (apparently on appeal), on 17 October 2014, to 5 years imprisonment and a restraining order for 2 years.
13 On 23 October 2015, he was convicted in Romania of driving with excess alcohol and sentenced to 1 year of imprisonment. This was varied on 5 April 2016 to 5 years 4 months imprisonment and a restraining order for 2 years.
14 On 8 July 2018, he accepted a caution from the Metropolitan Police for possession of Class B controlled drugs.
15 A movement trace from the UK Border Force shows the claimant arriving in the UK on 9 August 2019.
16 On 13 March 2020 the claimant came to the attention of the Metropolitan Police on suspicion of damage to property. However, no further action was taken.
17 On 2 June 2020, the claimant was assessed as suitable for deportation action by David Jones (a Home Office Executive Officer in the Foreign Convictions Team), based on his foreign convictions, following a referral from ACRO Criminal Records Office (the police unit which manages criminal records nationally). Mr Jones’ witness statement says that, on that day, “I formed the view that the claimant met the Secretary of State’s criteria for deportation action”.
18 Consequently, when the claimant was arrested on 19 June 2020, and again on 4 August 2020, “the special conditions flag meant that the Foreign Convictions Team was informed of these events” ( … ).
19 On 4 August 2020 the claimant was arrested by Metropolitan Police on suspicion of committing actual bodily harm against his partner. No further action was taken in relation to this. However, “the Claimant was detained under immigration powers as detention in pursuance of deportation was assessed as appropriate at that time” ( … ).
20 Prior to his detention on that day (4 August 2020), the claimant was served with the DLN [Deportation Liability Notice].”
(2)(b) The Appellant’s Litigation History
7. Griffiths J recorded at [25] that the appellant was served with a ‘One-Stop Notice’ (under section 120 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), as applied by paragraph 2(2) of Schedule 2 to the EEA Regulations 2016).
(2)(b)(i) The Deportation Order
8. In the absence of any response by the appellant to the DLN and the One Stop Notice, the respondent made the decision to deport the appellant on 25 August 2020. A deportation order (‘the Deportation Order’) was signed and served on the appellant on 26 August 2020 (see [45]-[46] of Griffiths J’s judgment).
9. Griffiths J further noted at [47] that:
“The decision notice enclosed with the letter of 25 August 2020 included with the paperwork was a decision notice giving much more detailed reasons. It was 17 pages and 112 paragraphs long. It explained why regulation 23(6)(b) of the EEA Regulations 2016 applied, and why a decision to deport the claimant as an EEA national had been made pursuant to that regulation. It referred, not only to his criminal record, but to his period of residence in the UK. It considered an assessment of threat (including consideration of proportionality), the prospects of rehabilitation, and (separately from the claimant’s position under EU law and the EEA Regulations 2016) the claimant’s potential rights under Article 8 of the European Convention on Human Rights. It set out his appeal rights. It discussed the possibility of certification under regulation 33 of the EEA Regulations 2016 in the claimant’s case, and concluded by certifying his case under that regulation, with the result that he might be removed from the UK “before your appeal (should you choose to appeal) is determined”. It then went on to consider the Article 8 and proportionality implications of the regulation 33 certification, and concluded that they did not make certification disproportionate. There was then further text about his appeal rights, and a reminder of the One-Stop Notice requirement that he should inform the defendant of any change of circumstances or new reason for wishing to remain in the UK as soon as reasonably practicable.”
(2)(b)(ii) Removal Directions and the First Judicial Review Application
10. Griffiths J indicated at [56]-[57] that:
“56. The claimant became distressed in detention. He self-harmed on 31 August, although when hospitalised he refused treatment and self-discharged back into detention. On 7 September 2020 he indicated that he wanted to return to Romania, but he changed his mind and did not sign the documents which were then provided to him. On 13 September 2020 he requested an assessment under rule 35 of the Detention Centre Rules 2001 by a medical practitioner. He was examined by Dr Mumtaz on 13 September 2020. He was granted bail by the First Tier Tribunal subject to an electronically monitored curfew on 25 September 2020 but there were difficulties in installing the equipment because of his failure to be at the curfew address at the material times as required. On 6 October 2020 he was arrested for being heavily intoxicated (upon which there was no further action) and on 14 October accepted a caution for failure to notify his address as a sex offender. He was returned to immigration detention.
57. Removal directions were set but the claimant obtained a stay from the out of hours judge, Mr Justice Pepperall, on 24 November, and the present proceedings were issued. Since then, his removal has been held in abeyance. On 30 November 2020 the First Tier Tribunal refused bail. On 8 December 2020 he was granted an extension of time for his appeal to the First Tier Tribunal. On 16 December 2020 he served a sealed copy of the present proceedings.”
11. Griffiths J was therefore aware of a parallel statutory appeal against the Deportation Order.
(2)(b)(iii) The Refusal of Judicial Review of the Deportation Liability Notice
12. Griffiths J considered and refused judicial review of the DLN, on the basis that, while it was a ‘measure’ for the purposes of Article 27(2) of the Free Movement Directive (Directive 2004/38/EC), i.e. a measure taken which may restrict an EU citizen’s right of residence, he rejected the contention that the DLN engaged Article 30 of the Free Movement Directive. He concluded at [140] that:
“… The DLN was not a decision to which Article 30 applied. It merely raised the possibility of such a decision in the future. It was not a decision requiring “access to judicial [or] administrative redress procedures” or, if it was, the administrative redress procedure was clearly stated in the DLN: namely, for the claimant (if he wished) to take the opportunity which was being given to him by the DLN to respond to and refute or counteract the points raised by the DLN before any further step was taken. Nothing in the DLN prejudiced him. The DLN gave him a warning, and a right to be heard, before a decision was made (and any such decision would, itself, if adverse to the claimant, open up the possibility of “access to judicial and, where appropriate, administrative redress procedures” in relation to that decision.)”
(2)(b)(iv) The Appeal against the Deportation Order and the First FtT Judgment
13. Separate from his application for judicial review, the appellant appealed against the Deportation Order. This appeal was initially dismissed by FtT Judge Davey, in a decision promulgated on 1 September 2022, following a hearing on 21 December 2021. We do not have the grounds of appeal to FtT Judge Davey, but it does not appear that the appellant advanced the discrimination argument at this stage. Judge Davey dismissed the appellant’s appeal with reference to the EEA Regulations 2016, the Immigration Rules and Article 8 ECHR.
14. On 15 September 2022 the appellant appealed against Judge Davey’s decision. In his grounds of appeal, he did not advance the jurisdiction argument. Indeed, instead of arguing that he did not need to demonstrate “permanent residence” in order to have the level of protection conferred by regulation 27(3) of the EEA Regulations 2016, he contended that he did have permanent residence and that Judge Davey had failed to consider that fact.
(2)(b)(v) The Upper Tribunal’s Decision on whether Judge Davey had Erred in Law
15. Upper Tribunal Judge Canavan and Deputy Upper Tribunal Judge Stout allowed the appellant’s appeal against Judge Davey’s judgment in a decision promulgated on 23 January 2023. At [7] the Upper Tribunal panel recorded the appellant’s appeal as including that:
“…the FtTJ should have dealt with the appellant’s case that he had acquired a right of permanent residence. Mr Cox submitted that the FtTJ had not given adequate reasons for why he rejected the evidence of the appellant.”
16. The parties accepted that Judge Davey had erred in law when directing himself at [2] of his decision, contrary to Arranz v SSHD (EEA Regulations –Deportation – Test) [2017] UKUT 294, that the burden was on the appellant to show that there were no public policy grounds for deporting him.
17. However, the Upper Tribunal panel made clear (at [12]) that:
“we do not consider that the FtTJ erred in law in his determination of what test to apply to the appellant. The burden was on the appellant to demonstrate that he had acquired a permanent right of residence. His submission on that was put in vague terms towards the end of Mr Gulamhussein’s skeleton argument (“He has … been resident on and off for over 14 years since 2007 …”).”
18. The Upper Tribunal panel remitted the remaking of the appeal against the Deportation Order to the FtT.
(2)(b)(vi) The Respondent’s Decision to Refuse Indefinite Leave to Remain
19. Before the matter was heard by Judge Swaney, on 24 October 2022 the respondent reached the second decision now under appeal (i.e. the refusal of indefinite leave to remain under Appendix EU). The appellant had applied for leave to remain under Appendix EU on 11 August 2021. No copy of that application was provided to us.
2(b)(vii) The Appellant’s Asylum and Human Rights Claim and the Certification Decision
20. Separately, on 22 November 2022 the appellant claimed asylum and argued that his removal from the UK would breach his human rights. In a decision dated 13 February 2023 the respondent refused asylum and dismissed the appellant’s human rights claim and certified the appellant’s claims as clearly unfounded.
(2)(b)(viii) The Second Judicial Review Application
21. The appellant applied for judicial review of the certification decision on 30 March 2023 (JR-2023-LON-000602). The respondent cancelled removal directions while she referred the appellant’s case to the Single Competent Authority (“the SCA”) to determine whether there were reasonable grounds to believe that he was a victim of trafficking. The SCA later concluded that there were not reasonable grounds, in a decision dated 13 March 2023.
(2)(b)(ix) The Refusal of Judicial Review against the Certification Decision
22. Upper Tribunal Judge Rimington refused permission to apply for judicial review on the papers, in a decision sealed on 14 August 2023. The appellant renewed his application for permission to apply for judicial review and Upper Tribunal Judge Kebede refused the renewed application for permission at a hearing on 18 October 2023. There was no further challenge to the certification of the appellant’s asylum and human rights claims.
(2)(c) The Remitted Statutory Appeal
(2)(c)(i) The Remitted Statutory Appeal: the Appellant’s Revised Skeleton Argument
23. Returning to appellant’s statutory appeal against the Deportation Order and the Appendix EU decision, in advance of a substantive FtT hearing, on 21 November 2023 the appellant filed a ‘revised’ skeleton argument, dealing with both decisions under challenge. The appellant’s skeleton argument set out, at [7], the appellant’s appeal rights in respect of the Deportation Order:
“The sole permitted grounds of appeal [are] that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom”: EEA Regs, Schedule 2, para 1, as continued in effect by Sch 3, para. 6(1)(cc).”
24. In respect of the Appendix EU decision, the appellant’s skeleton argument stated at [10] that:
“The permitted, relevant, grounds of appeal (see Appeals Regs reg. 8) are that:
(1) “the decision breaches any right which the appellant has by virtue of — (a) Chapter 1, or Article 24(2) or 25(2) of Chapter 2, of Title II of Part 2 of the withdrawal agreement”;
(2) “the decision… is not in accordance with residence scheme immigration rules”
25. The skeleton argument in turn cited various parts of the Withdrawal Agreement, the Free Movement Directive, the EEA Regulations 2016 and Appendix EU, including the definition of the term “deportation order” in Appendix EU. The skeleton argument cited as an issue (at [20(1)]) the following:
“Is A [the appellant] entitled to the benefit of EEA Reg. 27(3) by virtue of the principle of equality, under the Withdrawal Agreement, common law and/or ECHR Article 14 read with Article 8, in light of the provisions of paragraph (b)(ii) of the definition of “deportation order” in App EU?”
26. This issue had not previously been raised by the appellant. The skeleton argument went on to develop the discrimination argument, to the effect that the appellant did not need to demonstrate “permanent residence” in order to have the level of protection conferred by regulation 27(3) of the EEA Regulations 2016.

(2)(c)(ii) The Remitted Statutory Appeal: The FtT Case Management Directions
27. A substantive FtT hearing, which had been scheduled to be heard on 22 November 2023, was converted to a case management hearing, as a result of IT issues. In doing so, FtT Judge Davison recorded the following direction:
“The skeleton argument of 21 November 2023 raises a legal issue. A copy of the skeleton was provided to the respondent at today’s hearing. The legal argument is fully set out in the skeleton and is not repeated herein. In summary the argument is that because the appellant has resided in the United Kingdom for over 5 years it would be unlawful (irrational and/or discriminatory) to fail to treat him as having the higher level of protection (in the consideration of deportation) afforded to persons who have completed a continuous qualifying period of 5 years. The Respondent is directed to file a further decision/submission addressing this legal argument. If the respondent is to state that the appellant is not entitled to the higher level of protection detailed reasoning must be provided for this conclusion. The respondent must address why the appellant, in the circumstances, would be being treated differently to others under Appendix EU. In this decision/submission the respondent must also clarify whether it is accepted that the appellant has 5 years residence in the United Kingdom. If this factual matter is in dispute the respondent must set out the periods of time when it is asserted the appellant was not in the United Kingdom.”
(2)(c)(iii) The Remitted Statutory Appeal: The Respondent’s Response to the Directions
28. The respondent responded on 27 February 2024. The respondent reiterated regulation 27 of the EEA Regulations 2016 and submitted that:
“Any such deportation is required to be in accordance with regulation 27 of the EEA Regulations 2016, as saved. This regulation states that an EEA citizen, Swiss citizen, or their family members, who have a right of permanent residence in the United Kingdom may only be deported on serious grounds of public policy or public security. Regulation 27 also provides that an EEA citizen or Swiss citizen who has a right of permanent residence or indefinite leave to enter or remain under the EU Settlement Scheme and has resided in the United Kingdom for a continuous period of at least 10 years prior to the deportation decision may only be deported on imperative grounds of public security.”
“It is accepted that you have been resident in the United Kingdom in accordance with the EEA Regulations 2016, as saved, for a continuous period of five years. However, it is not accepted that you have accrued a permanent right to reside. As noted above Regulation 15 of the EEA Regulations 2016, as saved, requires an individual to reside in accordance with the EEA Regulations 2016, continuous period of five years in accordance with the Regulations, exercising Treaty rights. For the reasons set out below this is not accepted in your case.”
29. The respondent’s response cited the appellant’s immigration history, including an analysis of his presence and criminal offending in the UK. The respondent concluded that the appellant had not substantiated his claim to have been living in the United Kingdom continuously since August 2017 and said that:
“… even if you had permanent residence as a result of five years continuous lawful residence in the United Kingdom your deportation would be justified on serious grounds of public policy or public security.
As you have not acquired a permanent right of residence under the EEA Regulations 2016, as saved, consideration has been given to whether your deportation is justified on grounds of public policy.”
(2)(c)(iv) The Remitted Statutory Appeal: Judge Swaney’s Judgment
30. Judge Swaney considered, at [22]-[23], the appellant’s case as follows:
“22. The appellant’s case is that the definition of ‘deportation order’ in Appendix EU of the Rules means that it would be irrational and/or discriminatory not to treat him as being entitled to the middle level of protection against deportation afforded to people who have completed a continuous qualifying period of five years even though he had not acquired a right of permanent residence under the 2016 Regulations because he had not exercised Treaty rights continuously for five years.
23. The appellant contends that his deportation is not justified on serious grounds of public policy or public security, or in the alternative, on grounds of public policy.”
31. Judge Swaney considered the respondent’s response of 27 February 2024 at [13] and [18], referring to the respondent’s contention that the appellant had not acquired permanent residence.
32. Judge Swaney directed herself, at [31], to the definition of “deportation order” in Annex 1 to Appendix EU and, at [32], to the appellant’s separate appeal rights in respect of each decision. The respondent took no issue at the time with the Judge having jurisdiction to consider the discrimination argument. Judge Swaney noted, at [39], that:
“It is unfortunate that despite directions from the tribunal that the respondent’s position on this remains somewhat confused ”
33. She added, at [41], that:
“… I am satisfied that the respondent’s position is that the appellant did not reside in the United Kingdom in accordance with the 2016 Regulations continuously for five years. This is sufficiently clear from the reasons that follow the initial confused conclusions. The respondent does not accept that the appellant has evidenced continuous residence since August 2017 or that he has evidenced that he was exercising Treaty rights.”
34. Judge Swaney noted, at [42], that the appellant accepted that he had not acquired permanent residence and found, at [45], that the appellant had not acquired a right of permanent residence.
35. At [47]-[50], Judge Swaney addressed the discrimination argument. Judge Swaney rejected this argument, saying that the definition of “deportation order” in Appendix EU includes a deportation order already made under the EEA Regulations 2016 and that the Appendix EU decision was based solely on the fact that the appellant was the subject of a deportation order. This was a matter of fact, not subject to any requirement for justification in the context of the underlying reasons for the making of the Deportation Order. The consequence was that the appellant was only entitled to the lowest level of protection under the EEA Regulations 2016 in the context of a proportionality assessment.
(2)(d) The Appeal to the Upper Tribunal
(2)(d)(i) The Appeal to the Upper Tribunal: Grounds and Permission
36. In this appeal, the appellant reiterated the discrimination argument and contended that he ought to benefit from the so-called ‘serious grounds’ protection under regulation 27(3) of the EEA Regulations 2016, on the basis that the requirement of permanent residence ought not to apply to him. The appellant argued that the respondent had conceded that the appellant had been continuously resident for 5 years in the UK, albeit not in accordance with the EEA Regulations 2016, and that the respondent did not dispute that the appellant’s treatment was discriminatory. Judge Swaney had erred by dismissing the discrimination argument and consequently not assessing the appellant on the basis of so-called “serious grounds” protection.
37. Permission to appeal to the Upper Tribunal was initially refused, but Upper Tribunal Judge Kebede granted the renewed application for permission on 9 July 2025. This was on the basis that Judge Swaney had arguably failed to consider what the appellant claimed to be the respondent’s concession in relation to the appellant’s discrimination claim.
(2)(d)(ii) The Appeal to the Upper Tribunal: The Respondent’s Rule 24 Response
38. Pursuant to Rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Upper Tribunal Rules”), the respondent resisted the appellant’s appeal to this Tribunal on the basis that:
“4. The appeal resulted from a decision to make a deportation order before the specified date, the judge therefore considered whether the proposed deportation breached the appellant’s rights under the EU treaties. The two levels of protection relate to decisions under different legal schemes.
5. The decision of 24 October 2022 is not a decision on whether the deportation decision breached the appellant’s treaty rights, so the argument at the heart of the appeal is about 2 different decisions, which potentially affect the appellant in different ways.”
39. The respondent filed and served a skeleton argument in advance of a hearing scheduled before the Upper Tribunal on 9 October 2025. That hearing was subsequently postponed, on the appellant’s application.

(2)(d)(iii) The Appeal to the Upper Tribunal: The Jurisdiction Argument
40. The respondent indicated in her skeleton argument that she understood that the appellant’s challenge was to the definition of “deportation order” in Appendix EU. Under Appendix EU, a person subject to a deportation order under the EEA Regulations 2016 fell to be refused on suitability grounds. For those not subject to a deportation under the EEA Regulations 2016, eligibility was affected by whether the underlying conduct occurred before the end of the transition period. If it did, the amended definition of “deportation order” applied and the appellant did not need to demonstrate ‘permanent residence.’ For conduct taking place after the end of the transition period resulting in a deportation order, this would result in an application under Appendix EU being refused. Judge Swaney had recognised the discrimination argument, and recognised that there was a difference in treatment, but, at [8] of the skeleton argument, the respondent accepted that:
“the Judge’s analysis does not appear to answer the question of whether that difference in treatment results from unlawful discrimination.”
41. Ms Smyth elaborated on this by making a formal concession in the hearing before us, which we address later in these reasons.
42. The respondent disputed that she had conceded that the definition of “deportation order” in Appendix EU resulted in unlawful discrimination, but accepted that she had not developed the case as to why not and that the appellant could, perhaps fairly, be critical of the respondent’s conduct in the appeal to the FtT. Nevertheless, the issues raised by the appellant were important points of principle, having wider implications.
43. The respondent submitted that the Upper Tribunal had discretion to permit the respondent to advance a point of law not raised before Judge Swaney, particularly if it related to the FtT’s jurisdiction (as per SSHD v George [2025] 1 WLR 1025; [2024] EWCA Civ 1192 at [68] and SA v SSHD [2025] EWCA Civ 357 at [41] to [44]).
44. By the jurisdiction argument, the respondent argued that Judge Swaney did not have jurisdiction to entertain an argument that a difference in treatment between the appellant (the subject of a deportation order under the EEA Regulations 2016) and someone who was the subject of a deportation order under the amended definition in Appendix EU amounted to unlawful discrimination for the purposes of Articles 8 and 14 ECHR. So far as the Withdrawal Agreement was concerned, the argument could not have succeeded on the facts of the case. We say more later about these submissions as they were developed before us, but we mention them now, as the appellant submitted that the jurisdiction argument was only raised shortly before the resumed hearing on 18 March 2026.
(2)(d)(iv) The Appeal to the Upper Tribunal: Additional Skeleton Arguments
45. The appellant filed and served two skeleton arguments, on 2 and 16 March 2026. The respondent filed and served an additional skeleton argument on 9 March 2026. We summarise the respondent’s case first, as it raised the preliminary issues for us to decide.
(3) The Respondent’s Case on the Preliminary Issues
(3)(a) Jurisdiction to Hear the Appeal against the Deportation Order
46. The respondent submitted as follows. The appellant’s statutory appeal rights in respect of the Deportation Order were under regulation 26 of the EEA Regulations 2016. Those rights were preserved after the UK’s exit from the EU by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (“the Consequentials SI”). The ground of appeal was modified by the Consequentials SI (regulation 82 and paragraphs 5 and 6(1)(cc)(aa)), so that it reads as follows (modification underlined):
“ … the decision breaches the appellant’s rights under the EU Treaties so far as they were applicable to and in the United Kingdom by virtue of Part 4 of the EU withdrawal agreement in respect of entry to or residence in the UK.”
47. The appeal rights were not expanded, merely preserved. The UK’s exit from the EU did not, and could not, unpick decisions which had already been made. If a person was the subject of a lawful deportation order, then they were required to leave the UK and they were not entitled to any form of leave. If they contended that their deportation order was not lawful, then the remedy was for them to appeal the deportation order, by reference to the law which actually applied to their case. The appellant fell within paragraph (a) of the definition of “deportation order” in Annex 1 of Appendix EU, not paragraph (b).
48. By analogy with Amirteymour v SSHD [2017] Imm. A.R. 1368; [2017] EWCA Civ 353, particularly at [27]-[28], a right of appeal under regulation 26(1) was only a right to appeal "against an EEA decision". Regulation 26(1) created no right of appeal against any other kind of decision. In particular, it did not create a right of appeal in relation to a claim for leave to enter or remain under the Immigration Rules or by exercise of the respondent’s discretion by reference to Article 8. Where the respondent made a relevant decision by reference to the Immigration Rules or Article 8, that was an "immigration decision" with a separate right of appeal under section 82(1) of the 2002 Act. In Amirteymour, the Court of Appeal concluded that the FtT had no jurisdiction to hear an appeal on that basis.
(3)(b) Jurisdiction to Hear the Appeal against the Appendix EU decision
49. The respondent submitted that the FtT also did not have jurisdiction to consider, in a statutory appeal, as distinct from judicial review, the appellant’s claim of unlawful discrimination in respect of the Appendix EU decision. The appeal rights arose under regulation 3 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (the “2020 Exit Regulations”). The permissible grounds of appeal in regulation 8 were: that a decision breached Chapter 1, or Article 24(2), 24(3), 25(2) or 25(3) of Chapter 2, of Title II, or Article 32(1)(b) of Title III, of Part 2 of the Withdrawal Agreement; or that the decision was not “in accordance” with the provision of the Immigration Rules by which it was made (in this case, Appendix EU). The appellant did not appear to argue that the decision breached his rights under the Withdrawal Agreement. In respect of any challenge under Appendix EU, the refusal was plainly in accordance with the rules. There was no free-standing statutory right of appeal that the decision was “not in accordance with the law.” A challenge to the validity of Appendix EU ought to have been brought by way of judicial review. The FtT and the Upper Tribunal are creatures of statute. Statutory jurisdiction could not be conferred by waiver or by agreement and this Tribunal had made no decision which was irreversible (see Virk v SSHD [2014] Imm. A.R. 95; [2013] EWCA Civ 65, at [23]).
50. Any ground of appeal based on Article 14 ECHR, when read with Article 8, was not one which the FtT had jurisdiction to consider. The appellant had made a human rights claim, which had been certified. He had no right of appeal under section 82 of the 2002 Act. He could not advance the Article 14 ECHR ground, as there was no such right of appeal under the 2020 Exit Regulations.
51. To the extent that the appellant sought to rely on his discrimination argument being a “new matter,” for the purposes of regulation 9 of the 2020 Exit Regulations, this could not establish jurisdiction where it did not exist. The human rights arguments were not relevant to the substance of the Appendix EU decision and the respondent never consented to any “new matter” being considered by Judge Swaney.
(4) The Appellant’s Case on the Preliminary Issues
(4)(a) Objection to the Jurisdiction Argument
52. As we have said, in the light of the respondent’s skeleton argument, the appellant objected to the respondent raising the jurisdiction argument, but, if that were permitted, the appellant submitted that his statutory appeal to the Upper Tribunal against the Appendix EU decision should be treated as an application for judicial review. The respondent had not raised the jurisdiction argument in her Rule 24 response. The respondent was now contending that Judge Swaney had erred in law. The respondent also appeared to be raising an issue based on a lack of consent to a ‘new matter,’ when she ought to have argued before Judge Swaney that there was a new factual basis for the argument, to which the respondent had not consented.
(4)(b) Jurisdiction to Hear the Appeal against the Deportation Order
53. The appellant accepted that Judge Swaney accurately described how the EEA Regulations 2016 and Appendix EU operated in a case such as the appellant’s, but complained that she did not address his case that the provisions were without justification and discriminatory. In order to understand the appellant’s submissions on the jurisdiction argument, it is necessary to summarise his submissions on the discrimination argument.
54. The appellant submitted that his appeal rights against the Deportation Order included, by virtue of section 84 of the 2002 Act, whether the decision breached the appellant’s rights under the EU Treaties, insofar as they were applicable by virtue of Part Four of the Withdrawal Agreement. These included Article 21 of the Charter of Fundamental Rights of the EU (2012/C326/02) (‘the CFR’), which enshrined the principle of non-discrimination. That was a general principle of EU law, as the CJEU confirmed in Advocaten voor de Wereld [2007] EUECJ C-303/5, at [56]:
“[T]he principles of equality before the law and non-discrimination enshrined in Articles 20 and 21 of the Charter require that comparable situations should not be treated differently and that different situations should not be treated equally unless such treatment is objectively justified.”
55. Judge Swaney was required to allow the appellant’s appeal if the decision was not in accordance with EU law and the principle of non-discrimination meant that the restriction on the appellant not benefiting from the provision allowing so-called “serious grounds” protection, because he was already the subject of a deportation order under the EEA Regulations 2016, must be disapplied. The Judge was required to “read” paragraph (b)(ii) of the Appendix EU definition of “deportation order” to include a person subject to a deportation order under the EEA Regulations 2016.
56. The principle of equality also existed at common law, such as where the Court of Appeal held in R (MM (Lebanon)) v SSHD [2015] 1 WLR 1073; [2014] EWCA Civ 985 that a court could ‘sever’ a requirement of an Immigration Rule held to be invalid for unreasonableness. Tribunals could, even considering statutory appeals, consider whether a provision in regulations was lawful, citing Chief Adjudication Office v Foster [1993] AC 754, at 766H. Judge Swaney was applying an unlawful immigration rule and was required to allow the appeal against the Appendix EU decision on the basis that an unlawful immigration rule was not to be applied.
57. Separately or in addition, Judge Swaney failed to apply Article 14 ECHR when read with Article 8 ECHR. Immigration status was an ‘other status’ for the purposes of Article 14 ECHR, as the Supreme Court confirmed at [26] of R (Tigere) v Secretary of State for Business, Innovation and Skills (Just For Kids Law intervening) [2015] 1 WLR 3820; [2015] UKSC 57. The difference in treatment was on the grounds of immigration status, namely whether the Deportation Order was made under the EEA Regulations 2016 or not. No aim for the discriminatory treatment had been provided, let alone a legitimate one.
58. The appellant’s arguments were not an attempt to benefit retrospectively from a change in the law. That point was a bad one, as the Deportation Order had been made in the transition period.
59. The respondent’s attempt to limit the principles of non-discrimination based on differential treatment of different ‘cohorts’ was also wrong: Article 21 CFR was a non-exhaustive list, when describing the basis of unlawful discrimination.
60. The respondent’s reliance on R (Nouazli) v SSHD [2016] 1 WLR 1565, SC was not to the point, as it was a comparison between EU citizens and third-country nationals, as opposed to cohorts within the scope of EU law, where the discrimination alleged was not on grounds of nationality. R (Nouazli) was not authority for the proposition that EU law permitted discrimination on grounds other than nationality. The circumstances in which the non-discrimination principles applied included between EU nationals, for example in discriminating between opposite and same-sex couples in marriage (see Wojewoda Mazowiecki (C‑713/23)).
61. The respondent’s reliance on Amirteymour was also not to the point. That concerned whether the right of appeal under the EEA Regulations 2016 encompassed the right to raise a distinct human rights claim.
(4)(c) Jurisdiction to Hear the Appeal against the Appendix EU decision
62. The appellant submitted that the basis of his appeal against the Appendix EU decision was that the decision was “not in accordance with Appendix EU.” This was narrower than “not in accordance with the law,” but did not mean “regardless of its legality.” The Human Rights Act 1998 required the Upper Tribunal to consider this ground of appeal in a manner compatible with the appellant’s human rights. The consequence otherwise was that the Upper Tribunal would be bound to dismiss a statutory appeal on the basis of an unlawful provision of Appendix EU, while its power to quash a such a provision, as part of its judicial review powers, would remain.
(5) The Respondent’s Concession
63. At the hearing before us, Ms Smyth made the following concession on behalf of the respondent, i.e. that, if we were to decide that Judge Swaney had jurisdiction to consider the discrimination argument, the respondent accepted that Judge Swaney had erred in failing to “get to grips with the discrimination arguments made.” We infer from this that the concession was not that Judge Swaney did not deal with the issue at all (she plainly referred to it at [22] and [46]), but that she did not engage with, or resolve, the argument on unlawful discrimination. The respondent invited us to decide the issue of jurisdiction as a preliminary matter, given the time constraints during the half-day hearing. Ms Smyth also indicated that, if there were any question of an application for judicial review, there was much more that the respondent would wish to say in relation to public law principles.
(6) Discussion and conclusions
(6)(a) Issues
64. We have limited our analysis to the following questions:
(1) First, should the respondent be permitted to advance the jurisdiction argument?
(2) Secondly, if the answer to the first question is yes, did Judge Swaney lack jurisdiction to consider the discrimination argument, based on the separate statutory provisions for rights of appeal against the Deportation Order and the Appendix EU decision?
(3) Thirdly, if the answer is that Judge Swaney lacked jurisdiction in respect of the appeal against the Appendix EU decision, should we treat the appellant’s statutory appeal as an application for judicial review of the Appendix EU decision?
6(b) Should the Respondent be Permitted to Advance the Jurisdiction Argument?
65. We are satisfied that the respondent should be permitted to advance the jurisdiction argument. We accept Mr Cox’s submission that the argument was raised late, albeit not as late as initially suggested, as it appeared that Mr Cox was unaware of the respondent’s skeleton argument dated 8 October 2025, which had been filed and served in advance of the postponed hearing on 9 October.
66. We are also conscious that, even though it was raised last October, without apparent objection until March 2026, it was still significantly late. FtT Judge Davison had identified the discrimination argument as requiring a substantive response in his case management directions dated 22 November 2023. The respondent’s response dated 27 February 2024 did not, in our view, address the discrimination argument, and, at [39], Judge Swaney accurately described the respondent’s position as “somewhat confused…”.
67. Even as late as the Rule 24 response before this Tribunal, the respondent did not engage with the discrimination argument. We have reminded ourselves of the mandatory wording in Rule 24 of the Upper Tribunal Rules:
“(1B) In the case of an appeal against the decision of another tribunal, a respondent must provide a response to a notice of appeal if the respondent—
(a) wishes the Upper Tribunal to uphold the decision for reasons other than those given by the tribunal; or
(b) relies on any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal.
(1C) If paragraph (1B) applies, to the extent that the respondent needs any permission, including permission to appeal to the Upper Tribunal, the response must include an application to the Upper Tribunal for such permission.”
68. The respondent needs, and has applied for, permission to advance the jurisdiction argument. We accept that it does not follow that, because it is a jurisdictional issue, we must grant the respondent’s application. It remains a matter of discretion. We are conscious of the need for procedural rigour and, as we have said, we are conscious that it was significantly late. That said, we are also conscious that the appellant has (or ought to have) been aware of the respondent’s position since before the last adjourned hearing on 8 October 2025 and so has had a substantial period of time in which to address the issue and it is not too late to advance the jurisdiction argument on appeal, in the sense that it does not involve findings of fact not determined at first instance, as explained by the Court of Appeal in MS (Uganda) v SSHD [2014] 1 WLR 2766; [2014] EWCA Civ 50 at [10]. Moreover, the issues raised are clearly put and readily resolvable as a preliminary issue before this Tribunal. We therefore grant the respondent’s application.
(6)(c) Did Judge Swaney lack Jurisdiction in the Appeal against the Deportation Order?
69. The Upper Tribunal analysed the right of appeal against a Deportation Order in the case of Osunneye (Zambrano; transitional appeal rights) [2023] UKUT 00162 (IAC). The respondent herself relied on that case in her skeleton argument. The headnote to Osunneye includes the following:
“1. Following the UK's withdrawal from the EU, the Immigration (European Economic Area) Regulations 2016 are continued for transitional purposes by statutory instruments including the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 1309/2020).
2. Paragraph 5 of Schedule 3 to the 2020 Regulations deals with "Existing appeal rights and appeals". Paragraph 6 of Schedule 3 then sets out the specified provisions of the EEA Regulations 2016. Neither regulation 16 nor 20 of the EEA Regulations are included in that schedule. Regulation 36 relating to appeal rights is. Schedule 2 to the EEA Regulations is also amongst the provisions continued as modified. At paragraph 6(cc), the modifications to that schedule are set out.”
“5. Part Four of the Withdrawal Agreement is concerned with transitional provisions which apply during the transition or implementation period between the date of the Withdrawal Agreement and 31 December 2020.
6. Part Four of the Withdrawal Agreement applies "Union law" during the transition period. The Zambrano right is a derivative one which depends on Article 20 Treaty for the Functioning of the European Union (TFEU). The TFEU is part of "the EU Treaties". It is continued in force during the transition period.”
70. At [35] to [37], the Upper Tribunal in Osunneye explained (emphasis added):
“35. Applying paragraph 6(cc)(aa) of Schedule 3 to the wording of schedule 2 to the EEA Regulations and Section 84 produces the following result:
"SCHEDULE 2
APPEALS TO THE FIRST-TIER TRIBUNAL
1. The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the First-tier Tribunal as if it were an appeal against a decision of the Secretary of State under section 82(1) of the 2002 Act (right of appeal to the Tribunal) –
section 84 (grounds of appeal) as though the sole permitted grounds of appeal were that the decision breaches the appellant's rights under the EU Treaties in respect of entry to or residence in the United Kingdom so far as they were applicable to and in the United Kingdom by virtue of Part 4 of the EU withdrawal agreement."
We do not need to set out the remaining references to modifications to schedule 2 to the EEA Regulations. Broadly, they permit the Tribunal to consider matters as if section 84 included a ground of appeal on the above (modified) basis.
36. The issue then is how the fourth part of the EU withdrawal agreement ("the Withdrawal Agreement") applies (if at all) to this case. Part Four of the Withdrawal Agreement is concerned with transitional provisions which apply during the transition or implementation period between the date of the Withdrawal Agreement and 31 December 2020. It is no doubt for that reason that the modifications made to appeal rights under paragraph 6 of Schedule 3 distinguish as they do between decisions made and appeals brought during the transition period and decisions made after 31 December 2020.
37. Part Four of the Withdrawal Agreement applies "Union law" during the transition period. Certain provisions of the Treaties do not apply but none are relevant to the issues in this appeal. The Zambrano right is a derivative one which depends on Article 20 Treaty for the Functioning of the European Union (TFEU). The TFEU is undoubtedly part of "the EU Treaties". It is continued in force during the transition period. It would appear therefore that the right of appeal against a decision made prior to 31 December 2020 continues in force until finally determined (see in that regard paragraph 5(2) of Schedule 3).”
71. In her skeleton argument, the respondent has correctly identified that the non-discrimination principle, if it arose, did so by virtue of EU law as preserved in the Withdrawal Agreement. The respondent argued in her most recent skeleton argument that the non-discrimination principle does not arise. The respondent accepted that this involved a ‘fact-sensitive analysis of A’s case by reference to the protections in the Directive, as implemented by the 2016 Regulations,’ and submitted that it was simply not relevant to consider anybody else’s position ([30]).
72. We conclude that this argument, while clearly relevant to the discrimination argument, does not address the issue of whether Judge Swaney had jurisdiction to consider the discrimination argument in the context of the appeal against the Deportation Order. We further conclude that she did have jurisdiction, based on the appellant’s submissions. The right of appeal under the EEA Regulations 2016 was amended, in relation to the transition period, in the terms set out in Osunneye. That case explained how Part Four of the Withdrawal Agreement applied. It applied “Union law”, by virtue of Articles 126 and 127(1) of the Withdrawal Agreement, which state:
“Article 126 Transition period
There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.
Article 127
Scope of the transition
Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.
However, the following provisions of the Treaties, and acts adopted by the institutions, bodies, offices or agencies of the Union, shall not be applicable to and in the United Kingdom during the transition period:
(a) provisions of the Treaties and acts which, pursuant to Protocol (No 15) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland, Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union or Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, or pursuant to the provisions of the Treaties on enhanced cooperation, were not binding upon and in the United Kingdom before the date of entry into force of this Agreement as well as acts amending such acts;
(b) Article 11(4) TEU, point (b) of Article 20(2), Article 22 and the first paragraph of Article 24 TFEU, Articles 39 and 40 of the Charter of Fundamental Rights of the European Union, and the acts adopted on the basis of those provisions.”
73. Article 21 of the CFRs was not disapplied and it states as follows:
“1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.”
74. Adopting the Osunneye analysis, jurisdiction to consider the claim of unlawful discrimination in the appeal against the Deportation Order arose by virtue of Part Four of the Withdrawal Agreement. The respondent has accepted that, if we were to conclude that there was jurisdiction, the Judge erred in law, the error was material and we should remit the appeal back to the FtT.
75. It is unnecessary for us to consider the “new matter” point in relation to Articles 8 and 14 ECHR, which relate to the non-discrimination principle under the ECHR, when the analogous principle applies by virtue of the Withdrawal Agreement, although we note that the appellant’s human rights claim was certified, after both the Deportation Order and Appendix EU decision had been made.
76. We do not express a view on the merits of the discrimination argument, given the need to reconsider that argument on remaking. We accept that remittal to the FtT is appropriate, applying the Court of Appeal’s guidance in AEB v SSHD [2023] 4 WLR 12: [2022] EWCA Civ 1512. Paragraph 7.2(a) of the current Practice Statement is applicable, namely that:
“the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal;”
(6)(d) Did Judge Swaney lack Jurisdiction in the Appeal against the Appendix EU Decision?
77. We turn to the appeal against the Appendix EU decision. The statutory right of appeal rises under regulation 3 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 and the scope of an appeal right is set out at regulation 8:
“(1) An appeal under these Regulations must be brought on one or both of the following two grounds.
(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of—
(a) Chapter 1, or Article 24(2), 24(3), 25(2) or 25(3)] of Chapter 2, of Title II, or Article 32(1)(b) of Title III, of Part 2 of the withdrawal agreement,…
(3) The second ground of appeal is that—
….
(b) where the decision is mentioned in regulation 3(1)(c) or (d), it is not in accordance with residence scheme immigration rules;”
78. The appellant does not contend that there was jurisdiction to consider the discrimination claim under the Withdrawal Agreement. This is because the principle of non-discrimination is contained in Article 12 of the Withdrawal Agreement, which is contained in Part One, and the transitional provisions which are relevant to the Deportation Order are contained in Part Four. In contrast to the right of appeal against the Deportation Order, the statutory right of appeal against the Appendix EU decision is based on protection of limited rights under the Withdrawal Agreement, which do not encompass a specific EU non-discrimination principle.
79. Turning to the second ground of statutory appeal, namely that the impugned decision is not in accordance with residence scheme immigration rules, the residence scheme immigration rules in question are those contained in Appendix EU. The appellant accepts that, as expressly provided for in Appendix EU, his application for indefinite leave to remain was refused on the basis that he was the subject of a ‘deportation order’, as defined. Appendix EU contains the following provisions:
“Suitability
EU15. (1) An application made under this Appendix will be refused on grounds of suitability where any of the following apply at the date of decision:
(a) The applicant is subject to a deportation order or to a decision to make a deportation order;”
“Annex 1 – Definitions
deportation order as the case may be:
(a) an order made under section 5(1) of the Immigration Act 1971 by virtue of regulation 32(3) of the EEA Regulations; or
(b) an order made under section 5(1) of the Immigration Act 1971 by virtue of section 3(5) or section 3(6) of that Act in respect of:
(i) conduct committed after the specified date [i.e. 31 December 2020]; or
(ii) conduct committed before the specified date, where the Secretary of State has decided that the deportation order is justified on the grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations, irrespective of whether the EEA Regulations apply to the person (except that in regulation 27 for “with a right of permanent residence under regulation 15” and “has a right of permanent residence under regulation 15” read “who meets the requirements of paragraph EU11 or EU12 of Appendix EU to the Immigration Rules”; and for “an EEA decision” read “a deportation decision”)
in addition, for the avoidance of doubt, (b) includes a deportation order made under the Immigration Act 1971 in accordance with section 32 of the UK Borders Act 2007.
80. It was not disputed before us that the Deportation Order fell within paragraph (a) of this definition. The Deportation Order was made “by virtue of regulation 32(3) of the EEA Regulations” because it was made before the specified date (i.e. 31 December 2020), at a time, during the transition period, when the EEA Regulations 2016 still applied.
81. The discrimination argument focuses attention on the different treatment of:
(1) on the one hand, someone who, like the appellant, had committed offences before the specified date and had been made the subject of a deportation order before that date, in accordance with the provisions of the EEA Regulations as then in force; and
(2) on the other hand, someone who had committed offences before the specified date, but who had not been made the subject of a deportation order until after that date.
82. In relation to the definition of “deportation order” in Annex 1 to Appendix EU, we note the following:
(1) Regulation 27(3) of the EEA Regulations 2016 provides as follows (emphasis added):
“A relevant decision may not be taken in respect of a person with a right of permanent residence under regulation 15 except on serious grounds of public policy and public security.”
(2) Judge Swaney found, and the appellant did not argue before us to the contrary, that the appellant did not have a right of permanent residence. On that basis, regulation 27(3) did not apply to the appellant.
(3) However, regulation 27(3), as read in accordance with paragraph (b) of the definition of “deportation order” in Annex 1 to Appendix EU, provides as follows (emphasis added):
“A relevant decision may not be taken in respect of a person who meets the requirements of paragraph EU11 or EU12 of Appendix EU to the Immigration Rules except on serious grounds of public policy and public security.”
(4) The relevant provision was condition 3 in paragraph EU11, which applied to a relevant EEA citizen who had completed a continuous qualifying period of 5 years, although it was not accepted before us that the appellant had completed a continuous qualifying period of 5 years when the deportation order was made.
83. This Tribunal explained the operation of sub-paragraph (b) of the definition of deportation order in the case of Castro (Appendix EU, "deportation order") [2024] UKUT 00393 (IAC). The appellant’s argument is that, while he falls within sub-paragraph (a), he should be treated as though a deportation order had been made under sub-paragraph (b), so that he can benefit from what this Tribunal described in Castro at [56] as the result of sub-paragraph (b) in the following terms:
“… We consider that the absurdity referred to is not the result of any issue of ambiguity or construction of Appendix EU to the Immigration Rules but an obvious and natural consequence of the policy and drafting chosen by the Respondent; which is entirely in line with a consistent policy choice within the EUSS to focus only on residence in the United Kingdom and not the fulfilment of conditions for such in accordance with the EEA Regulations. The result is particularly obvious in the definition of deportation order in Annex 1 to Appendix EU, paragraph (b)(ii) which refers to the application of regulation 27 of the EEA Regulations "irrespective of whether the EEA Regulations apply to the person". Whilst the result is more generous than would seem to have been required under the EEA Regulations if still in force, or required by the EU Withdrawal Agreement, that is expressly what the provision provides for. This conclusion is also consistent with the decision in Abdullah.”
84. The appellant’s claim boils down to his contention that his exclusion from what might be termed the Castro benefit is discriminatory. In turn, he does not rely (because he cannot rely) on the Withdrawal Agreement, but instead on common law principles and Article 14 ECHR, when read with Article 8. The appellant invites this Tribunal to rewrite Appendix EU.
85. We conclude that Judge Swaney did not have jurisdiction (nor do we) to consider a statutory appeal against the Appendix EU decision based on the discrimination argument. This is for the following reasons.
86. First, the scope of the right of appeal, set out in secondary legislation, i.e. Regulation 8(3)(b) of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020, is that the decision is, “not in accordance with the residence scheme immigration rules.” The appellant does not suggest that there is a fine point of interpretation or ambiguity. It is a straightforward challenge to the legality of Appendix EU, either on common law or ECHR principles.
87. Dealing with each in turn, we do not accept that the general principle of non-discrimination either under common law or by virtue of the ECHR can expand the scope of a statutory right of appeal. This is not an “aid to interpretation”, as the appellant has suggested. The appellant has alternatively cited Chief Adjudication Officer v Foster [1993] AC 754 as supporting the principle that, on a statutory appeal, a Tribunal may consider the lawfulness of secondary legislation. This illustrates the importance of identifying the scope of appeal rights, which in Foster was whether a decision was “erroneous on a point of law”, which extended to considering whether regulations went beyond the scope of an enabling power (see the headnote, at [2)].
88. While the appellant has cited R (MM (Lebanon)) as authority for the proposition that provisions in the Immigration Rules might be ‘severed’ on the basis of unlawful interference with Article 8 ECHR rights (see R(MM (Lebanon)) at [133]), the obvious point is that the court in that case was considering an application for judicial review, not a statutory appeal. There is no suggestion that a court could not entertain an application for judicial review which sought to challenge the validity of a provision of the Immigration Rules.
89. That, however, would be an application which only the High Court or more senior courts could consider, by virtue of paragraph 3(i) of the Consolidated Direction given by the Lord Chief Justice on 21 August 2013, as amended on 17 October 2013, in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 and section 18 of the Tribunals, Courts and Enforcement Act 2007. The Direction provides as follows:
“1. Subject to paragraphs 2 and 3 below, the Lord Chief Justice hereby specifies the following classes of case for the purposes of section 18(6) of the Tribunals, Courts and Enforcement Act 2007:
any application for permission to apply for judicial review and any application for judicial review (including any application for ancillary relief and costs in such applications) that calls into question:
i. a decision made under the Immigration Acts (as defined in Schedule 1 to the Interpretation Act 1978) or any instrument having effect (whether wholly or partly) under an enactment within the Immigration Acts, or otherwise relating to leave to enter or remain in the United Kingdom outside the immigration rules; or
ii. a decision of the Immigration and Asylum Chamber of the First-tier Tribunal, from which no appeal lies to the Upper Tribunal.”
“3. Paragraph 1 above does not apply to any application which comprises or includes:
i. a challenge to the validity of primary or subordinate legislation (or of immigration rules);”
90. In summary, the Upper Tribunal cannot consider a judicial review application which challenges the Immigration Rules.
91. The appellant has also submitted that his statutory right of appeal must be compatible with the Human Rights Act 1998. This ignores the fact that the appellant could bring a separate statutory appeal on human rights grounds under section 82 of the 2002 Act, albeit in his case his human rights claim was certified.
92. Although not part of our substantive reasoning, we are reinforced in our conclusion that the Tribunal does not have jurisdiction to consider a ground of appeal based on discrimination under regulation 8(3)(b) by our conclusion that the appellant is not without a potential alternative remedy, via his challenge to the Deportation Order. In Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 00066 (IAC), this Tribunal stated, in the headnote at (H) and (J):
“(H) The effect of a finding that the deportation is not justified by reference to reg 27 of the EEA Regulations is that Exception 7 under section 33 of the United Kingdom Borders Act 2007 is met, and the Secretary of State's policy is then to revoke any deportation order, at which point leave to remain under the EUSS can be granted.”
“(J) Where an appeal has been allowed under the EEA Regulations; or, in an appeal under the CRA Regulations on the basis the deportation decision is not justified by reference to reg 27 of the EEA Regulations, it follows that any linked appeal against the same decision under section 82 of the 2002 Act will be allowed on the basis that the decision under appeal was not in accordance with the law.”
93. In summary, if the appellant’s statutory appeal succeeds in relation to the Deportation Order, it would follow that the Deportation Order would be liable to be revoked, with implications for the appeal against the Appendix EU decision.
(6)(e) Should we treat the Appeal as an Application for Judicial Review?
94. We have decided not to treat the appellant’s statutory appeal against the Appendix EU decision as an application for judicial review. Our reasons are as follows. First, there is a need for procedural rigour, with a proper paid application, or an undertaking for the same, which complies with the Upper Tribunal Rules, including Rules 28 and 28A. Secondly, applications for judicial review have to be made promptly, which has not happened in this case. Thirdly, the appeal against the Appendix EU decision has not been presented as an application for judicial review and, consequently, has not been responded to as such. Had that been the case, different arguments and/or evidence might have been presented. Even if we had had jurisdiction to hear the proposed application for judicial review, we would not have considered it appropriate to exercise our discretion in the appellant’s favour. However, fourthly, the Upper Tribunal does not have jurisdiction to hear such an application for judicial review.
(7) A Possible Relevant Fact for Remaking
95. We finally pause to observe that, at the date of the Deportation Order, made on 26 August 2020, on the appellant’s own chronology, he had only been present in the UK, having returned from a period of imprisonment in Romania, since August 2017. Regardless of whether the appellant was exercising treaty rights or not, at the date of the Deportation Order he had only resided in the UK for a continuous period of 3 years. The relevance of this will be for the judge remaking the decision in the FtT to consider.
(8) Notice of Decision
(8)(a) The Appeal against the Deportation Order
96. Judge Swaney’s decision to dismiss the appellant’s appeal against the Deportation Order contained an error of law, such that her decision is not safe and cannot stand. We therefore set it aside.
97. The remaking of the appeal is remitted to the First-tier Tribunal, to a judge other than Judge Swaney.
(8)(b) The Appeal against the Appendix EU Decision
98. Judge Swaney’s decision to dismiss the appellant’s appeal against the Appendix EU decision did not contain a material error of law, as contended by the appellant, namely on the basis of the discrimination argument. This is because Judge Swaney had no jurisdiction to consider an appeal on that basis. Judge Swaney’s decision stands. In the event that a Judge remaking the appeal against the Deportation Order allows that appeal, it follows the Deportation Order would be liable to be revoked, with implications for the Appendix EU decision, but that does not affect our conclusion that Judge Swaney’s decision on the appeal against the Appendix EU decision stands.
(8)(c) Judicial Review
99. We have made no decision on any application for judicial review, as none has properly been made to this Tribunal and such an application would need to be considered by the High Court in any event.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2nd July 2026