Upper Tribunal provides guidance on the deportation of EU nationals

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.

The Withdrawal Agreement

The question arose due to articles 20 and 21 of the Withdrawal 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.

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.