[2024] UKUT 00336 (IAC)

Vargova (EU national: post 31 December 2020 offending: deportation)

Heard at Field House

THE IMMIGRATION ACTS

Promulgated on 26 September 2024

Before

THE HONOURABLE MR JUSTICE DOVE, PRESIDENT

UPPER TRIBUNAL JUDGE HANSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

KATARINA VARGOVA

(NO ANONYMITY ORDER MADE)

Respondent

and

THE AIRE CENTRE

Intervenor

Representation:

For the Appellant: Julia Smyth and Harriet Wakeman, instructed by the Government Legal Department.

For the Respondent: Thomas de la Mare KC and Ms Bojana Asanovic, instructed by Turpin & Miller (Oxford) Solicitors.

For the Intervenor: Tim Buley KC and Alex Shattock, instructed by the AIRE Centre.

1. There is a ‘bright line’ distinction to be drawn between the regimes that apply to (i) Union citizens, their family members, and other persons, who exercise rights under the Withdrawal Agreement (‘WA’) who commit offences prior to the end of the transition period and (ii) such persons who commit offences after this date.

2. A decision to restrict the rights of entry and residence of a Union citizen, their family members, or other persons who exercise rights under the WA (‘relevant persons’) who commit a criminal act before 11pm 31 December 2020 (‘the specified date’), or any appeal against such a decision, must be considered in accordance with Chapter VI of Directive 2004/38/EU – see Article 20(1) WA.

3. The question of whether a ‘relevant person’ who commits a criminal offence after the specified date is liable to deportation must be considered by reference to the United Kingdom’s domestic law, at both the initial decision-making stage and in any subsequent appeal – see Article 20(2) WA. In such cases, Article 21 WA does not import into domestic law the substantive safeguards which are found in the Directive, such as a requirement to apply the EU law concept of proportionality. The ‘safeguards’ which are available to such individuals as a result of Article 21 WA are restricted to procedural safeguards only.

4. Where the Secretary of State considers the deportation of 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, she proceeds in two distinct stages.

5. At the first stage, the Secretary of State issues a deportation decision, in response to which the subject is able to raise objections to the decision to make a deportation order. A Stage 1 decision does not restrict the subject’s right of residence and the safeguards in the Directive have no application or any appeal against the Stage 1 decision. 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.

6. 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 against a Stage 1 decision. The grounds of appeal against such a decision are found in regulation 8 of those Regulations. If no submissions are made in response to the Stage 1 notice, 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.

7. At the second stage, when a deportation order is made and notified, a decision is made that does 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.

8. If human rights issues are raised in response to a Stage 1 decision on family or private rights grounds by a ‘relevant person’ who commits a criminal act after the specified date, these must be considered by the Secretary of State. If she maintains it is lawful to deport, a Stage 2 decision will be made rejecting any human rights claim. Any right of appeal against that decision is to be found in domestic law. The proportionality of the decision by reference to all relevant facts, including the EU national’s status and Article 20(2) of the Withdrawal Agreement excluding the application of EU law, can be considered at that point.

DECISION AND REASONS