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Section 3C does not apply to EU law residence applications

  1. The question before us is whether a person who at one stage was the spouse of an EEA citizen with a right of abode in the United Kingdom but no longer has that status and right is to be treated as having leave either under the Immigration Act 1971 or otherwise after his application for permanent residence as the former spouse of an EEA citizen has been rejected.

The answer is a firm “no”.

Under the Immigration Act 1971 sections 3C and 4, someone applying for variation of leave under that Act — that is under UK immigration law, rather than the 2006 Immigration (EEA) Regulations — has their leave extended pending a decision on whether to vary the leave or not. However, states Lord Justice Beatson, that is the 1971 Act. The Immigration (European Economic Area) Regulations 2006 are a different matter, and a different procedural system applies to them.

  1. Mr Kannangara’s submission that a person “should” have a status in effect similar to that given by section 3C of the 1971 Act is in effect a submission as to a reform designed to put such a person in a similar position to a person with leave under the 1971 Act. That process, however, is one for the legislature and not for the court.

The final nail in the coffin is the point that the 2006 Regulations themselves recognise the distinction between the processes under the different immigration systems.

  1. As well as the provisions to which I have referred, paragraph 4(2) of schedule 2 to the 2006 Regulations expressly provides that a person who has been issued with a residence card shall have no right of appeal under section 82(1) of the 2002 Act, and regulation 19(5) recognises the distinction between the right to reside under EU law and the right to remain under the 1971 Act. It provides that a person must not be removed as a person who does not have or ceases to have a right under the 2006 Regulations it he has a right to remain by virtue of leave granted under the 1971 Act.

Source: AS (Ghana) v Secretary of State for the Home Department [2016] EWCA Civ 133 (20 January 2016)

Paul Erdunast
Paul Erdunast LLM student at Cambridge University. Formerly a full-time Education and Community Care Paralegal at Just for Kids Law, Intern at Hackney Community Law Centre and Legal Caseworker at the AIRE Centre. GDL graduate from City University. Previously studied Classics at Worcester College, Oxford. Interested in immigration, asylum and refugee law and policy.

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