[2024] UKUT 00336 (IAC)

If a foreign national meets the threshold for deportation under domestic law, consideration is given to the making of a Stage 1 deportation decision, not the making of a deportation order itself. Subsequently there can be the issuing of a Stage 1 decision letter setting out why deportation is conducive to the public good. That is the process that was completed in relation to Ms Vargova and the matter that should have been considered by the First-tier Tribunal.

any non-British citizen who does not have the rights protected under the Agreements regardless of when the conduct occurred;

any person who has rights protected by the Agreements (or the U.K.’s domestic implementation of the Agreements) in relation to conduct that occurred after 11 PM GMT on 31 December 2020.

the person is not a British citizen or an Irish citizen

the person was convicted in the UK of an offence

the person was sentenced to a period of imprisonment of at least 12 months (single sentence)

the person was serving that sentence on or after 1 August 2008, whether in custody or in the community

the person has not been served with notice of the decision to deport the relevant person on conducive grounds.

Unless one of the exceptions set out in section 33 of the Act apply.

Section 32(4) and (5)—

Exception 4 is where the foreign criminal—

Exception 5 is where any of the following has effect in respect of the foreign criminal—

The application of an exception—

The Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Savings, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, section 17(2) deals with amendments to the UK Borders Act 2007 and the omission of section 33(4) which provided an exception to deportation for EU nationals. Whilst Ms Vargova submits that the UK Borders Act should have no application in a case such as hers there is no authority for this proposition or any indication that Parliament intended that effect. If none of the statutory exemptions apply there is no need to assess whether deportation is conducive to the public good.

There is no indication in any text to which we have been referred that supports a claim that the fact the 2007 Act fails to provide any exception for an EU national who commits an offence and is sentenced after the relevant date, is as a result of Parliament not understanding the terms of the Withdrawal Agreement in relation to this issue, or is other than the will of Parliament.

The revocation of section 33(4) of the 2007 Act causes problems for Ms Vargova with her argument, constructed on the basis the provisions to be found in the Directive she relies upon continue to apply, that the 2007 Act is required to be disapplied.

We also note the submissions in relation to the UK Borders Act 2007 mirror a similar argument run by Mr Buley KC before a differently constituted tribunal in Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 00066 which was rejected.

We turn to the provisions of EU law which featured in the parties’ arguments. The submissions made and previous decisions in relation to the Withdrawal Agreement highlight the importance of considering the correct context of the issues at large.

Directive 2004/EC/38, the Directive, relates to the right of free movement in EU law. All EU citizens and their family members have the right to move and reside freely within the EU, a fundamental right established by Articles 21 of the Treaty on the Functioning of the European Union and Article 45 of the EU Charter of Fundamental Rights. The first provision on the concept of free movement of persons was introduced in the 1957 Treaty establishing the European Economic Community. The Treaty of Maastricht introduced the notion of EU citizenship to be enjoyed automatically by every national of a Member State which is the basis of the right to move and reside freely within the territory of a Member State. The gradual phasing out of internal borders under the Schengen agreements was followed by the adoption of the Directive and rights of EU citizens and their family members to move and reside freely within the EU.

The provisions relating to a restriction on the right of entry and the right of residence on grounds of public policy, public security or public health are to be found in Chapter VI of the Directive, with specific reference to Article 27 which sets out general principles and Article 28 which set out provisions to protect an EU citizen from expulsion.

The Immigration (European Economic Area) Regulations 2006, which transposed the Directive into UK law, set out the rights of EEA nationals and their family members to be admitted to and reside in the UK in certain capacities and refers to the power to deny or revoke a person’s right to free movement on the grounds of public policy, public security or public health. The 2006 Regulations went through various amendments with the version in force at the date theUK left European Union being the Immigration (EEA) Regulations 2016, which have been revoked.

The direct effect of a Directive in EU law is not disputed nor were the UK’s obligations under EU law whilst the UK was a member of the EU. Section 2 (1) of the European Communities Act 1972 as originally enacted stated:

That provision was, however, repealed by section 1 of the European Union (Withdrawal) Act 2018 which received Royal Assent on 26 June 2018. There was thereafter a need to regulate the future relationships between the UK and the EU.

The Withdrawal Agreement was implemented in the UK by the European Union (Withdrawal Agreement) Act 2020 which received Royal Assent on 23 January 2020. The impact of these legislative provisions means that from 11 PM on 31 January 2020, the date and time of the UK becoming a non-Member State, UK citizens are no longer citizens of the European Union.

Some EU laws were expressly excluded from the scope of what was carried forward by the Withdrawal Agreement, including in paragraph 2 of Schedule 1 which effectively prohibited any further recognition of general principles of EU law in cases decided after the UK had left the EU. Paragraph 3 of that Schedule also limited the application of such principles which had been recognised before 31 December 2020 by providing that there is no right of action in domestic law after that date based on a failure to comply with those general principles of EU law and precluding any reliance on general principles of EU law to disapply or quash any enactment or rule of law or to decide that any conduct was unlawful.

By comparison, as a result of the UK leaving the EU, freedom of movement related protections against expulsion no longer apply to EU citizens, who are now subject to existing provisions contained under a range of UK legislation. Grounds for removal or deportation of an EU national (concerning the conduct after the end of the transition period) now expand beyond the previous grounds to include a range of other reasons. The reasons are such as (i) when deportation is conducive to the public good - Immigration Act, 1971, s. 3 (5); (ii) where a person has been convicted and sentenced to a period of imprisonment of at least 12 months - UK Borders Act, 2007, s. 32; (iii) or when deportation of a serious foreign criminal is in the public interest - Nationality, Immigration and Asylum Act, 2002, s. 117C. Although s. 3(5) of the Immigration Act 1971 excludes current holders of pre-settled and settled status (new residence permits for EU citizens), the 2007 and 2002 Acts apply to those individuals. This permits the UK government to deport even those with permanent residence for criminal conduct after the UK’s departure from the EU pursuant to these powers. Crucially, EU citizens serving a term of imprisonment can now be removed from prison and deported from the United Kingdom even if they have not completed their prison term – see section 47 Nationality and Borders Act 2022.

Having considered the elements of domestic and EU law which feature in the parties’ arguments we turn to the provisions of the Withdrawal Agreement which, as we have said, are central to the determination of the issues which have been set out above. It is important to consider the specific wording of the Withdrawal Agreement, as was recognised by the Upper Tribunal in Celik v SSHD [2022] UKUT 00220, a decision upheld by the Court of Appeal - see Celik [2023] EWCA Civ 921.

The Withdrawal Agreement is an international treaty negotiated between the United Kingdom and the remaining members of the European Union. Treaty interpretation is guided by Articles 31 through to 33 of the Vienna Convention on the Law of Treaties. The fundamental rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in context and in the light of its object and purpose. The purpose of the Withdrawal Agreement was, amongst many other matters, not only to regulate the rights of EU citizens who have chosen to live in the UK but also to regulate the rights of the UK citizens who live in the remaining states of the European Union, an estimated 1.3 million people.

The difference in the position adopted by the Secretary of State and of the other parties is dependent upon their starting point. We have formed the view that given the UK has now departed the EU, and the vehicle for regulating its current relationship with the EU is the Withdrawal Agreement, it is more helpful to use as the starting point the terms of the Withdrawal Agreement to address how the correct approach to a decision to deport in relation to conduct occurring after the end of the transition period is to be assessed.

It is a settled principle that it is not possible to invoke principles of EU law in interpreting the Withdrawal Agreement, save insofar as that Agreement specifically provides. Article 4(3) states “The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall be interpreted and applied in accordance with the methods and general principles of Union law”. The Secretary of State’s view is that the Withdrawal Agreement makes no such provision for consideration of Union law, including the EU law concept of proportionality, when considering deportation of an EU national who has committed a criminal offence after the specified date.

Article 20 of the Withdrawal Agreement is central to the resolution of the arguments raised in this case. It reads:

In our view Article 20(1) clearly creates a defined class of individuals who are entitled to retain the protection set out in the Directive in relation to any attempt to restrict their rights of residence and entry. Applying the ordinary meaning of the words there is nothing to suggest that the protection provided by the Directive applies to any other class of individuals to the same extent. If that hadbeen the intention of the contracting parties, they would have said so, but they do not. We find there is merit in Ms Smyth’s submission in relation to the creation of a specific class of individuals to whom the Directive continues to apply when one considers the wording of Article 20(1) of the Withdrawal Agreement. The class is effectively defined by Article 20(1) as those who have committed conduct prior to the end of the transition period which falls to be considered in relation to any impact it might have on that person’s rights of residence and entry.

This interpretation is reinforced by the wording of Article 20(2) which specifically provides, by contrast, that where a period of conduct occurs after the end of the specified date then that conduct may constitute grounds for restricting the rights of residence in the host state or the right of entry in accordance with national legislation. Article 20(1) therefore creates an exception to the general proposition that following the end of the transition period and in accordance with the Withdrawal Agreement EU law has no application.

We therefore find that there is a ‘bright line’ distinction to be drawn between the regimes that apply to those who commit offences prior to the end of the transition period and those who commit offences after this date. In relation to the latter the intention of the Withdrawal Agreement is clear in that the substantive protection provisions found in EU law, including the application of the EU law proportionality principle, ceased to be applicable.

We have also considered the publication by the European Commission: ‘A guidance note relating to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and European Atomic Energy Commission’ which supports our finding. In relation to Article 20, restriction on the rights of residence, it is written:

Having found Article 20 to be clear and unambiguous, we move on to consider the correct approach to Article 21 of the Withdrawal Agreement which reads as follows:

“The safeguards set out in Article 15 Chapter VI of Directive 2004/38/EC shall apply in respect of any decision in the host State that restricts rights of the persons referred to in Article 10 of this agreement”.

Article 15 of the Directive provides that Articles 30 and 31 of the Directive are to apply “by analogy to all decisions restricting free movement of Union citizens and family members on grounds other than public policy, public security or public health”. Article 30 provides that a person subject to a decision restricting their exercise of free movement rights should be provided with written notice specifying the public policy, public security or public health grounds which were the reason for the decision, along with information in relation to how the decision could be appealed. Article 31 is set out and considered below. Applying the approach to construction which has been set out above, we accept the submissions that Article 21 must be read together with and alongside Article 20(1) and Article 20(2) as not importing substantive EU law rights in respect of those committing conduct rendering them liable to be considered for deportation after the end of the transition period, but rather provides solely for procedural protections. These are commonly understood to be the rights to be notified of a decision and how to appeal it, the right to an effective remedy, and the right to a fair hearing in respect of any challenge to the decision in question.

We do not accept the submission that Article 21 imports into domestic law substantive safeguards to be found in the Directive such as a requirement to apply the EU law concept of proportionality, in relation to cases under Article 20(2) in respect of individuals who have committed conduct after the end of the transition period giving rise to the need to consider whether they should be deported. This submission has the effect of importing the need to consider European law as provided for in Article 20(1) into cases specifically covered by Article 20(2). To do so would render the clear intended bright line in relation to the approach for those who commit offences prior to the specified date and those who commit offences after, irrelevant. That was clearly not the intention of the parties to the Withdrawal Agreement. The context of this finding is that offences committed prior to the specified date by an EU national would have been committed during the period the UK was part of the EU in which the protection given to the right of free movement, referred to above, was applicable. Following the specified date the UK was not a party to any EU treaty conferring such a right upon an EU national or obligation upon a member state to apply EU law. The only right such an individual has, as reflected in Article 20(2), is for any action being taken as a result of their offending after the specified date to be considered in accordance with domestic law.

It also goes without saying that the clear wording of Article 20(2) shows that any decision to restrict a relevant person’s rights under the EUSS following criminal conduct which took place after the end of the transition period is not based on any concept of EU law and therefore does not require construction in light of the general principle of EU law pursuant to Article 4(3) of the Withdrawal Agreement. This distinction is reinforced by the actual wording of Article 20(1) which specifically refers to the application of EU law whereas Article 20(2) contains no reference to Union law or to concepts or provisions of Union law and makes reference only to domestic law.

As set out above, Article 21 refers to “safeguards” set out in Article 15 and Chapter VI of the Free Movement Directive. For the reasons we have given, in relation to individuals facing the potential for deportation as a result of conduct after the transition period this wording clearly does not import the whole of these provisions, restricting them to procedural safeguards only. Procedural safeguards are also, as referred to above, referred to in Article 31 of the Directive which reads:

The proportionality issue under Article 31 arises from Article 31(3) which refers to Article 28, but it is important to note that we have not been referred to any requirement in domestic law which places a legal obligation upon a decision-maker to apply Chapter VI of the Directive, which includes Articles 27 and 28. Nor have we been referred to any authority to substantiate a claim that Article 31(3) requires a Tribunal to apply a proportionality analysis based upon EU law in relation to an EU national who commits an offence after the specified date. In fact, we find that the intention of the contracting parties was for there to be a clear line between those referred to in Article 20(1) and Article 20(2), with the effect that the proportionality analysis to be found in Articles 27 and 28 of the Directive no longer applies to the latter. Thus a person who commits an offence after the relevant date is no longer entitled to the substantive safeguards in Articles 27 and 28, and, therefore neither the Secretary of State nor a judge on appeal is required to conduct a proportionality analysis as a result of the terms of the Withdrawal Agreement in respect of such an individual. The position in relation to other regimes and the application of a proportionality assessment, such as the ECHR, is not affected by this finding.

We accept Ms Smyth’s submission that if we were to find as Mr de la Mare and Mr Buley submit, that would undermine the purpose and intention of the parties to the Withdrawal Agreement, especially if it permitted Article 31 to bring a substantive proportionality analysis in through the “backdoor” under the guise of a procedural safeguard. Such an event would introduce elements that are not specifically provided for in domestic law. We reject any suggestion that there is, in reality, no difference to a procedural or substantive safeguard or that substantive safeguards, such as applying the full text of the Directive in relation to protection against removal of EU citizens, can be construed as procedural. They are different concepts and are treated as such in the Directive and the Withdrawal Agreement.

We find no merit in an argument that Article 31(3) of the Directive introduces a new free-standing substantive right on appeal, especially where no corresponding substantive right would exist in relation to the initial decision which we find would be contrary to the clear wording of Article 20(2).

We also note and accept a further submission by Ms Smyth at [52] of her skeleton argument when she writes:

Mr de la Mare submitted another judge of the Upper Tribunal had accepted there was a role for proportionality. That is a reference the decision of Upper Tribunal Judge O’Callaghan the unreported case of Lukasz Krzysztofik, the citation of which we have set out above.

That case involved a separate issue, namely the lawfulness of the Secretary of State’s decision to pause the applicant’s EUSS application dated 21 September 2020 as a result of a pending prosecution. Judge O’Callaghan declared the Secretary of State’s policy unlawful as being contrary to the Withdrawal Agreement. In relation to proportionality Judge Callaghan writes:

We do not find this assists Ms Vargova, as the circumstances being considered by Judge O’Callaghan were materially different from those in this appeal. To start with, the conduct which was the subject of the pending prosecution had occurred prior to the end of the transition period and this was therefore a case which fell within Article 20(1) of the Withdrawal Agreement and not Article 20(2). Judge O’Callaghan was not considering a specific provision of the Withdrawal Agreement which excludes the application of Union principles as is the case with Article 20(2) of the Withdrawal Agreement, which the Judge noted contrasted with the provisions and therefore requirements of Article 20(1) of the Withdrawal Agreement (see [33] of the decision). Instead, he was considering an action by the Secretary for the Home Department which delayed the recognition of a right said to be preserved by the Withdrawal Agreement. We do not dispute that there are some situations in which Union law and the proportionality principle will continue to apply, as specifically provided by the Withdrawal Agreement, an example of which is to be found in Article 20(1).

It must also be remembered that the Withdrawal Agreement sets out minimum standards as agreed between the parties. The Secretary of State can grant more generous rights to an EU citizen, and has done on other occasions, to which if there is a later interference with such rights the protection provided by Article 21 may be relevant.

In relation Article 21 the guidance published by the European Union reads:

There is nothing within this guidance to support an argument that what is being referred to is a substantive right. There is only reference to procedural safeguards which reinforces the submission of Ms Smyth that Article 21 relates to procedural safeguards rather than substantive rights.

There is a further analysis which is to be brought to bear upon these issues. We note that pursuant to Article 21 the starting point in any case will be the need to consider whether a decision has been made that restricts the residence rights of a person referred to in Article 10. It is not disputed before us that Ms Vargova is a person to whom the personal scope of the Withdrawal Agreement applies, as she is a Union citizen who was exercising a right to reside in United Kingdom in accordance with Union law before the end of the transition period and has continued to reside here thereafter.

The decision under challenge before the Judge was a Stage 1 deportation decision notice. That wording is important. It was not a deportation order but a notice advising Ms Vargova that the Secretary of State had made a deportation decision against her and allowing a period within which she was able to raise objections to the making of a deportation order. We find it is therefore not a decision which restricts her rights of residence. We find on a proper interpretation of Article 21 that the safeguards in the Directive have no application at the making of a Stage 1 deportation notice stage or any appeal against the same. The question at that stage is whether the decision to make a deportation notice is lawful under the applicable domestic regime. It is not a decision to remove the recipient of the notice but a decision to consider making a deportation order.

It is when a deportation order is made and notified in a Stage 2 deportation order notice, which will also notify a person of any pertinent right of appeal, that a decision is made in the host state that will restrict the right of the person referred to in Article 10 and bring into play the provision of Article 21 and the procedural safeguards set out in the Directive.

We do not accept Mr de la Mare’s submissions that the 2007 Act needs amending or should be declared incompatible as exception 7 in section 33 does not specifically include a reference to those who committed offences after the specified date. The reason for that is that those persons are not protected by European law and the amendments made to the 2007 Act were entirely consistent with the provisions of the Withdrawal Agreement in respect of cases concerning conduct after the end of the transition period.

Before turning to our conclusions on the Judge’s decision which is the subject matter of this appeal we think it would be helpful to set out the basis of the appeals of this sort and the likely scope of appeals under Stage 1.

A person with leave to remain under the European Union Settlement Scheme (EUSS) may have a right of appeal under regulation 6 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 which reads:

The available Grounds of appeal are to be found in regulation 8:

If no submissions are made, i.e. on human right grounds, the only basis of challenge is the lawfulness of the decision on the basis of the information known to the decision maker on the basis of the application of established domestic law principles. If an appeal against a Stage 1 decision raises human rights issues not previously raised, the Secretary of State for the Home Department can consider the same with view to issuing a Stage 2 decision which will have the effect of superseding the Stage 1 decision. The Stage 2 letter is called a ‘Decision to Refuse a Human Rights claim’ which is usually given to the recipient with a Deportation Order. The problem in this case was the failure of Ms Vargova to respond to the Stage 1 decision with her human rights submissions until much later in the process.

The question to be considered at an appeal against a Stage 1 decision is whether the appeal should be allowed by the tribunal on the basis that there was a breach of domestic law in the process of making the decision to make the order, where the nature of the breach will have been such as to render the decision unlawful i.e. the legal validity of the decision to deport.

If submissions have been made on human rights grounds, the Secretary of State must have specific regard to her obligations under Article 8 of the Convention, balancing the applicant’s ties to the United Kingdom and any difficulties he or she would face readjusting to life in their home country against the seriousness of their criminal offending, but that will form part of the Stage 2 consideration process.

During the course of the hearing submissions were also made in relation to the Home Detention Curfew with additional time being given to the advocates to file an agreed note in relation to this issue. That document was received on 21 August 2024 which we set out at Annex A to this decision. We have considered the content of the document but do not consider it impacts upon our decision and the reasoning set out in this judgment as a result of the fact it has no impact upon the EU nationals right of residence.

In the light of the conclusions which we have set out above we return to the determination under challenge. We note that it is argued that if the Judge erred in law in applying the Directive this was not a material error of law as the Judge considered all the facts. For the following reasons we do not accept this argument.

The Judge’s findings of fact are set out from [6] of the decision under challenge. The Judge specifically refers to Article 21 of the Withdrawal Agreement at [6] – [9] in the following terms:

We find merit in Ms Smyth’s submission that the Judge erred in law at [7] in making a finding that Article 21 imports the whole of Chapter VI of Directive 2004/38/EC as for the reasons set out above we cannot accept that it does. The decision under challenge is a Stage 1 decision which does not restrict Ms Vargova’s right of residence in any event.

In this regard we do not agree with the submission of Mr de la Mare referred to at [24] above as he is claiming the Judge did not err in stating the Directive has to be applied as part of it ceased to be applicable following the UK departure from the EU. He is saying there is no error as the Judge was only saying that those parts which remain in force have to be applied, but that is not the wording used by the Judge. The further problem with this submission is that it is a clear reference to the substantive provisions, not the procedural requirements which survive, as before.  That submission is only right if Mr de la Mare is correct in his interpretation of the Withdrawal Agreement, but we find he is not.

At [15], as we noted above, the Judge writes:

We find the Judge’s error to be material as it is not clear that she would have come to the same decision if the correct legal matrix had been applied. The Judge specifically refers to the Directive which we have found has no application in relation to a Stage 1 decision on the facts of this case.

In answer to the specific questions we have been asked to consider, we find as follows: