Upper Tribunal provides guidance on the deportation of EU nationals for post-Brexit conduct

What protections under EU free movement law does someone with status under the EU Settlement Scheme enjoy if they are facing deportation due to committing a criminal offence after 31 December 2020?

This question was considered by the Upper Tribunal in Secretary of State for the Home Department v Vargova (unreported, UI-2023-004566, EA/12363/2022). The answer: they have procedural rights such as the right 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. However, they do not have a right to have the proportionality of any proposed deportation considered by the First-tier Tribunal.

Note that the position on pre-Brexit conduct has already been considered by the Upper Tribunal.

The Withdrawal Agreement

The question arose due to articles 20 and 21 of the Withdrawal Agreement. These provisions provide as follows:

Article 20

Restrictions of the rights of residence and entry

1. The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under this Title, where that conduct occurred before the end of the transition period, shall be considered in accordance with Chapter VI of Directive 2004/38/EC.
2. The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under this Title, where that conduct occurred after the end of the transition period, may constitute grounds for restricting the right of residence by the host State or the right of entry in the State of work in accordance with national legislation.
3. The host State or the State of work may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Title in the case of the abuse of those rights or fraud, as set out in Article 35 of Directive 2004/38/EC. Such measures shall be subject to the procedural safeguards provided for in Article 21 of this Agreement.
4. The host State or the State of work may remove applicants who submitted fraudulent or abusive applications from its territory under the conditions set out in Directive 2004/38/EC, in particular Articles 31 and 35 thereof, even before a final judgment has been handed down in the case of judicial redress sought against any rejection of such an application.

Article 21

Safeguards and right of appeal

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

Article 10 outlines the personal scope of the Withdrawal Agreement. Someone with status under the EU settlement scheme, such as Ms Vargova, falls within the personal scope of the Withdrawal Agreement.

Articles 20 and 21 appear to contradict one another. Under article 20(2) restrictions on Ms Vargova’s right to reside in the UK will be imposed in accordance with UK law. However, under article 21, Ms Vargova benefits from the safeguards set out in EU free movement law.

Resolving the contradiction

The Upper Tribunal reconciled this apparent contradiction by interpreting article 21 to apply only to procedural safeguards.

The tribunal held as follows in relation to article 20:

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… 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… 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. (at [61] to [63])

The Tribunal interpreted the “safeguards” referred to in article 21 as follows:

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. (at [66]).

The tribunal did not accept that the right to have the proportionality of any proposed deportation considered by the tribunal was a procedural safeguard. Interpreting it as such:

…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. (at [71]).

The First-tier Tribunal had considered the proportionality of Ms Vargova’s deportation and had therefore proceeded on the basis of a material error of law. As such, the Home Secretary’s appeal was allowed and the appeal sent back to the First-tier Tribunal to be reconsidered.

When do these procedural safeguards apply

The tribunal also considered when these procedural safeguards kick in. Ms Vargova had appealed against a Stage 1 deportation notice.

As outlined in the Home Office’s guidance, there are two stages to the deportation process:

• Stage 1 involves notifying the person of their liability to deportation and asks them to make representations explaining why they should not be deported, if they wish to do so.

• Stage 2 involves consideration of whether to make a deportation order.

The tribunal held as follows:

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. (at [81] to [82]).

Often, the representations made in response to the Stage 1 notice will raise human rights issues and the Stage 2 decision will constitute a refusal of a human rights claims with a right of appeal to the Tribunal. There will be a concurrent right of appeal under regulation 6(2) of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. It is at this stage that compliance with the procedural safeguards referred to above should be considered by the Tribunal.

The headnote reads as follows:

A decision to restrict the rights of entry of residence and entry of a Union citizen, their family members, or other persons who exercise rights under the Withdrawal Agreement (‘relevant persons’) who commit a criminal act before 11pm 31 December 2020 (‘the specified date’), or a series of offences that occur both before and after 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) Withdrawal Agreement.

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) Withdrawal Agreement.

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.