The Court of Appeal (CoA) addressed the issue of the deportation of EU citizens for crimes committed after the UK’s withdrawal.
Facts:
Ms. Vargova, a Slovakian national who arrived in the UK in 2007 at the age of 21, was granted Indefinite Leave to Remain (ILR) under the EU Settlement Scheme (EUSS) in January 2021. In July 2022, she was convicted of possessing Class A drugs with intent to supply and sentenced to 25 months’ imprisonment.
Mr. Molnar, a Czech national who arrived in the UK in 2012 at the age of 10, was granted ILR in 2019. In March 2022, he was convicted of drug offences and possession of a knuckleduster, receiving a 27-month sentence.
The Secretary of State issued notices to both individuals (referred to as “Stage 1” decisions) stating that they were deemed to be “foreign criminals” under Section 32(5) of the UK Borders Act 2007. This legislation mandates “automatic deportation” for any non-British citizen sentenced to more than 12 months in prison, unless specific human rights exceptions apply. They both appealed against the decisions, relying on their right under the Withdrawal Agreement (the WA), specifically Article 21, arguing that the UK must still apply the EU “proportionality” test before deporting them. The Secretary of State argued that Article 20.2 of the WA creates a “sharp distinction” as, while crimes committed before Brexit follow EU law, crimes committed after Brexit are governed by UK legislation.
The First-tier Tribunal (FTT) sided with the appellants, ruling that the Home Office failed to conduct the required proportionality assessment. The Upper Tribunal (UT), however, overturned the decisions, finding that, for post-Brexit conduct, the UK is free to apply its own national laws without being bound by the specific safeguards of the EU’s Citizens’ Rights Directive, or CRD. The appellants appealed to the CoA.
Decision:
The CoA delivered a nuanced ruling that partially favoured the appellants on a procedural point but ultimately dismissed their primary challenge against the post-Brexit deportation regime. The Court found that the initial “Stage 1” notice – the letter informing them they were liable for automatic deportation – is a restriction on residence rights under the WA. This means that EU citizens can trigger their appeal rights under the WA as soon as they receive this notice, rather than having to wait for a final deportation order. It also confirms that these initial steps are subject to the safeguards of the WA.
However, the Court dismissed the appeal on this substantive point. The Court held that, for criminal conduct occurring after the Brexit transition period, there is no requirement for the UK to apply the specific “EU-style” proportionality test found in the CRD. The judges ruled that Article 20(2) of the WA creates a “bright line”. Once an EU citizen commits a crime post-Brexit, the UK is entitled to apply its own national legislation rather than the more protective EU rules.
The Court refused to send the case to the European Court of Justice, stating the law was clear enough for UK judges to decide.
Implications:
This case makes it clear that EU citizens can no longer rely on their 5 or 10 years of residency to gain near-immunity from deportation for crimes occurring after 31 December 2020. EU citizens are now subject to the UK Borders Act 2007, which triggers automatic deportation for any sentence of over 12 months.
The only remaining defence is a standard Article 8 ECHR appeal, wherein they must prove “very compelling circumstances” or that deportation would be “unduly harsh” to their family, which is effectively the same high bar faced by non-EU nationals. EU citizens with “Settled Status” (ILR) are now effectively treated in the same manner as any other foreign national regarding criminal conduct, as their EU background no longer grants them a higher “proportionality” threshold.
However, the confirmation that a “Stage 1” notice is a restriction of rights allows EU citizens to appeal much earlier in the process, thereby creating a tactical window. Because the “Stage 1” notice is now legally recognised as a “restriction,” it may make it easier for individuals to challenge their detention and apply for immigration bail earlier in the deportation cycle.
