![[2024] UKUT 00336 (IAC)](https://backend.juristeca.com/files/emisores/logo_AioYBzS.png){kind=logo}
The background
The background
The Secretary of State appeals with permission a decision of First-tier Tribunal Judge Anthony (‘the Judge’), promulgated on 14 September 2023, in which she allowed Ms Vargova’s appeal.
Both members of the Panel have contributed to this decision.
Ms Vargova is a citizen of Slovakia born on 24 April 1986 who, at the time of the appeal before the Judge, was the subject of a decision to deport her from the United Kingdom as a result of her conviction on 27 September 2022 for possession of a controlled drug in Class A with intent to supply, committed on 20 July 2022, for which she was sentenced to 2 years and 1 month imprisonment.
Ms Vargova was served with a Decision to deport while serving her sentence on 12 November 2022, a Stage 1 decision. She had a right of appeal against the deportation decision pursuant to regulation 6 of the Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020 which meant she could only appeal on the ground the decision (a) breaches any right under the Withdrawal Agreement or (b) the decision is not in accordance with section 3(5) or (6) of the Immigration Act 1971, which she exercised.
At [15] of her determination the Judge writes:
Having weighed up all of the competing arguments and having applied Article 15 of the Withdrawal Agreement; Article 27.2 and Article 28 of the Citizens Directive, I reached the conclusion that the appellant’s previous criminal conviction cannot in and of itself constitute grounds for the respondent’s expulsion decision. I place weight on the fact the appellant represents a low risk of reoffending and a low risk of harm to the public. I find this is an important consideration that tips the expulsion measure into disproportionate emphasis on the appellant’s past offending. I have also balanced all of these considerations against the long term free movement right exercised by the appellant over the last 13 years. Therefore, having applied the safeguards as set out in the Withdrawal Agreement and having applied the EU law principles of proportionality, I reached the conclusion that the expulsion decision by the respondent is a disproportionate measure for the reasons I have set out above.
The Secretary of State asserts that the Judge materially erred in law in relation to the application of the Withdrawal Agreement and the applicable deportation regime, bearing in mind that the conduct leading to the decision to deport occurred after the end of the transition period.
Following notification of the Stage 1 decision on 12 November 2022 Ms Vargova was able, within the specified period, to make representations to the Secretary of State as to why a deportation order ought not to be made. Ms Vargova provided a response with human rights submissions dated 25 January 2023. The Secretary of State subsequently made a Stage 2 decision, refusing her human rights claim, and made a deportation order dated 16 February 2024.
On 22 February 2024 Ms Vargova lodged an appeal against the refusal of her human rights claim, which is pending before the First-tier Tribunal with reference HU/51990/2024. She asserts in that appeal, inter alia, that the Secretary of State’s decision is contrary to Article 8 ECHR as it is not in accordance with the law. She submits that it is contrary to the Withdrawal Agreement and also disproportionate in view of her facts and circumstances, including her strong private life established whilst lawfully in the UK exercising treaty rights, and the fact her deportation is not in the interests of her rehabilitation.
It was ascertained at the adjourned error of law hearing on the 15 January 2024 that the appeal against the Stage 1 deportation decision considered by the Judge was lodged before the further submissions on human rights grounds were made.
Had the appeal involved a decision to deport an EEA national or their family member taken before 11 pm on 31 December 2020, or after, but in respect of a crime committed prior to this date and time, the EU law regime set out in Directive 2004/38/EC (the ‘Directive’), incorporated into the UK domestic law by the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) would have applied. This would have made it necessary to consider regulations 23 and 27 of the 2016 Regulations as they were prior to 31 December 2020.
There was also a “grace period”, for although the 2016 Regulations were revoked on 31 December 2020 the deportation provisions in regulations 23 and 27 continued to have effect for a further six months “grace period” until 30 June 2021 in respect of a person who did not have (or not had) leave under EUSS, and who immediately before 31 December 2020 received lawful residence in the UK by virtue of the Regulations, or had a right of permanent residence under the Regulations.
The Issues
The agreed schedule of issues requiring determination by the Upper Tribunal in this matter is:
Should the FTT’s decision be set aside for material error of law on the grounds identified?
Can the UT decide that question without addressing the issues below (leaving them to be addressed on re-making, if the decision is set aside), or does it need to decide the issues before deciding whether there has been a material error of law?
Does the WA require that post-transition period conduct be considered in a manner that applies the EU law proportionality principle on a case-by-case basis?
Should a request for a preliminary ruling from the Court of Justice of the European Union be made by the Upper Tribunal pursuant to Article 158 of the Withdrawal Agreement?
Issue included by Secretary of State but not agreed:
Even if the answer to one or more of questions 1-4 above is ‘yes’, would that allow a tribunal to conclude that any right which Ms Vargova had by virtue of Part 2 of the WA was breached?2
2 See Regulation 8(2)(a) of the Immigration (Citizens’ Rights Appeal) (EU Exit) Regulations 2020. In addition, reference is made by SSHD to paragraphs 7, 16ii and 66 of SSHD’s skeleton argument dated 26 February 2024, and to paragraphs 2v and 12 of SSHD’s response to the Respondent and AIRE Centre submissions dated 2 April 2024, to demonstrate that this issue is pertinent, has been identified throughout the appeal by the Appellant SSHD, and falls to be decided by the Upper Tribunal.