[2024] UKUT 00336 (IAC)

In his skeleton argument dated 10 July 2024 Mr de la Mare KC accepts the core issue for the Upper Tribunal is whether EU proportionality considerations apply to decisions restricting the right to reside based on conduct after the specified date to persons within the personal scope of the Withdrawal Agreement. It is not disputed Ms Vargova is one such person as she has lived and worked in the UK before the specified date, had a right to reside, and held indefinite leave to remain issued under Appendix EU of the Immigration Rules.

Ms Vargova’s case is that there is no material error of law on the face of the First-tier Tribunal decision which found the decision to deport contrary to the Withdrawal Agreement because it was disproportionate in EU law terms.

Ms Vargova also argues that the applicable safeguards provided by the individual application of the proportionality principle, that she submits is guaranteed for post-departure conduct by Article 21 of the Withdrawal Agreement, render the mechanism of automatic deportation for offences crossing a particular gravity threshold incompatible with the Withdrawal Agreement.

The correct construction of Article 20 and 21 of the Withdrawal Agreement and Article 31.3 of the Directive, interpreted in line with Article 4.3 of the Withdrawal Agreement, is said to require UK courts, as an essential procedural safeguard, to review the facts of an individual case to test the proportionality of any proposed deportation when deciding whether it is lawful to restrict the right of a person within the scope of the Withdrawal Agreement on account of post-departure conduct. It is argued that the continued operation of this safeguard process, in which there will be a fact specific application of the proportionality principle, is the explicit requirement of Article 31 of the Directive, and that this is preserved by Article 21 of the Withdrawal Agreement. It is also contended that the Secretary of State is required to consider these matters before taking an expulsion measure in national law.

Ms Vargova submits that the scheme of automatic deportation provided for by the UK Borders Act 2007, specifically in section 32(5), must be dis-applied pursuant to section 7A European Union Withdrawal Act 2018. What is left is a requirement to decide the case on its facts, as required with any other deportation outside the scheme of automatic deportation, and in doing so to take account of the material features of the applicant’s position as identified in Articles 28.1 and 31.3 of the Directive, as the First-tier Tribunal Judge did.

Ms Vargova refers to a recent decision of Upper Tribunal Judge O’Callaghan in relation to the operation of proportionality in R (Krzysztofik) v Secretary of State the Home Department JR-2021-LON-001727 at [84], which we discuss further below.

Mr de la Mare KC also submits the Secretary of State’s argument on Ground 1 that the continued application of the proportionality test for deportation decisions for those with a retained right to reside in relation to their post-departure conduct renders the text of Article 20(2) devoid of meaning, as a result of which Article 21 of the Withdrawal Agreement should be given a restricted meaning, is said to be flawed, as it ignores those aspects of the previous substantive test under the Directive which ceased to be applicable. Ms Vargova also argues that the Secretary of State’s claim that as such features of the Chapter VI scheme have been authorised for amendment or removal, it follows that the assertion that the proportionality principle and its guaranteed application to the identified material features of the individual case has no role, is wrong either as a matter of text or a matter of logic. We discuss this point further below.

Ms Vargova argues that a decision to restrict the rights to reside must be proportionate once account is taken of the key, and specifically, factual features of the individual’s case, as spelt out by Article 28.1 and 31.3 of the Directive, such that the measure in itself is rationally connected to the attainment of such objectives, that no lesser alternative is adequate, and the measure is proportionate in the round. Ms Vargova argues that significant weight is to be attributed to residence in this exercise in accordance with the Directive as required by the Withdrawal Agreement, and that the Secretary of State’s approach is impossible to reconcile with the system of automatic deportation and inflexible or axiomatic rules, as contained in section 32 of the UK Borders Act 2007, in particular the rule in section 32(5).

Ms Vargova argues that the Secretary of State’s argument that merely procedural safeguards are preserved, with proportionality being a substantive safeguard, does not survive first contact with the text of the provisions of the Directive specifically saved by Article 21 Withdrawal Agreement. This argument is submitted to proceed on a misconception as to what is meant by “safeguards” in Article 21 and “procedural safeguards” in Article 15 and 31.3 of the Directive. It is submitted “procedural safeguards” are plainly any and all safeguards as to the content, approach and nature of the decision-making and appeal procedure, and that Articles 28.1 and 31.3 make no sense if any other reading is given.

Ms Vargova argues that the Secretary of State’s alternative proposition that any proportionality analysis would take place at Stage 2 is said to be at odds with (i) the text of section 33 of the UK Borders Act 2007 as it is submitted that there is no exception provided pursuant to which such an exercise is permitted, and (ii) the very nature of the Tribunal appeal system which is devised to afford a right of appeal against a Decision to Deport, but not against a deportation order. If the Secretary of State through practice chooses not to make a proportionality decision, in circumstances where directly effective EU law requires it, and to which the Withdrawal Agreement continues to give effect, the Tribunal has no choice but conduct the exercise itself, as First-tier Tribunal did in this appeal.

Ms Vargova also submits that the broader position is that the scheme of s.32 to s.33 of the UK Borders Act 2007 is incompatible with the Withdrawal Agreement as a result of its failure to contain a further exception to deal with the distinct issues presented by post-departure conduct. It is submitted this is why the incompatibility arises at Stage 1. This cannot be avoided by the existence of other statutory exceptions to the requirement to deport, tailored to other distinct considerations such as the Human Rights Act or ECHR protections which if refused, as claimed by the Secretary of State, attract their own rights of appeal, and which may lead to the disapplication of the Stage 1 decision.