[2024] UKUT 00336 (IAC)

The Secretary of State’s case is that the First-tier Judge’s self-direction at [7] of her decision, that “Article 21 imports the whole of Chapter vi of Directive 2004/38/EC” is wrong. As a result, the Judge has made a clear material error of law which warrants, for that reason alone, the decision being set aside.

The Secretary of State submits Article 20 of the Withdrawal Agreement draws a clear distinction between the way in which conduct pre and post the end of the transition period will be dealt with, and makes it clear from Article 20(2) that where conduct post-dates the transition period, domestic law applies and this does not require any EU law proportionality analysis. The Secretary of State argues that Article 21 of the Withdrawal Agreement must be read and interpreted in light of, and consistently with, Article 20, and when this is done it becomes clear that the safeguards preserved by Article 21 are procedural only, rather than substantive. It is argued that otherwise, Article 20(2) would be deprived of meaningful effect.

In the alternative, even if a proportionality analysis was required by virtue of Article 21 (which is denied by the Secretary of State), it is argued that it could not be the case that Article 21 imports a specific proportionality test where the relevant conduct post-dates the end of the transition period and Article 20(2) applies. It is argued that the proportionality principle is context specific, applies specifically to citizens’ rights and is given effect by the provisions of the Directive. Thus it is argued that applying those provisions, and effectively applying the test in Article 20(1) to post-transition conduct contrary to the clear terms of Article 20(2), makes the clear distinction in Article 20(1) and 20(2) between the applicable regime for conduct pre-and post-dating the date of the transition period, devoid of meaning.

The Secretary of State argues that to give effect to the clear intention of the contracting parties in Article 20(2), any application of the EU proportionality principle would in any event need to take into account, and be applied consistently with, the relevant provisions of national legislation. Thus, it would need to take into account the wider context, namely, that the contracting parties to the Withdrawal Agreement specifically agreed that post-transition conduct should be treated differently from pre-transition period conduct, and that a Member State should be permitted to apply its national legislation.

The Secretary of State also refers to the fact that at the time of the Judge’s decision she had not yet made a deportation order against Ms Vargova and had not made a decision on her human rights claim. It is submitted that in light of that Ms Vargova could not explain how, in the face of the clear terms of Article 20(2), making a Stage 1 decision breaches her rights under the Withdrawal Agreement. The Secretary of State’s position is that making a Stage 1 decision would not breach any rights enjoyed by Ms Vargova under the Withdrawal Agreement even if EU proportionality principle applied. Ms Smyth submitted that Ms Vargova’s submissions are entirely focused on why she should not actually be deported, but at the time of her Stage 1 decision, no deportation order had been made.