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The Upper Tribunal (“UT”) has published its decision in SSHD v Vargova (UI-2023-004566), an important case about whether the EU law principle of proportionality continues to apply to certain deportation decisions following the UK’s exit from the EU.
Ms Vargova was a Slovakian national who had been granted indefinite leave to remain under the EU Settlement Scheme. In September 2022, she was convicted of possession of Class A drugs with intent to supply and sentenced to 2 years and 1 month imprisonment. All of her offending took place after the end of the transition period following the UK’s exit from the EU (which ended at 11pm on 31 December 2020).
SSHD served Ms Vargova with a Stage 1 Decision pursuant to s.3(5)(a) of the Immigration Act 1971 and s.32(5) of the UK Borders Act 2007 on the basis of her conviction. Ms Vargova appealed against that decision under Regulation 6 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, on the ground that the decision was in breach of her rights under the Withdrawal Agreement (a ground of appeal provided for in Regulation 8(2) of the 2020 Regulations). The First-Tier Tribunal allowed her appeal and concluded (at [15]) that “having applied the safeguards as set out in the Withdrawal Agreement and having applied the EU law principles of proportionality…the expulsion decision by the respondent is a disproportionate measure”.
SSHD appealed to the UT, arguing that the First-tier Tribunal materially erred in law in relation to the application of the Withdrawal Agreement and the applicable deportation regime, in circumstances where the conduct leading to the decision to deport occurred after the end of the transition period. The AIRE Centre, a legal charity which promotes awareness of European law rights, intervened in the appeal.
The UT concluded at [61] that Article 20(1) of the Withdrawal Agreement “creates a defined class of individuals who are entitled to retain the protection set out in [Directive 2004/38/EC] in relation to any attempt to restrict their rights of residence and entry” and that Article 20(2) “specifically provides, by contrast, that where a period of conduct occurs after the end of the specified date then that conduct may constitute grounds for restricting the rights of residence in the host state or the right of entry in accordance with national legislation”. Accordingly, Article 20 of the Withdrawal Agreement drew a ‘bright line’ distinction between the regimes that apply to those who commit offences prior to the end of the transition period and those who commit offences after that date. The UT went on to find that Article 21 of the Withdrawal Agreement had to be read together with Article 20(1) and Article 20(2), and taking that approach, Article 21 did not import substantive EU law rights in respect of conduct committed after the transition period, and instead it solely provided for the continued application of procedural protections. Accordingly, the UT concluded that Article 21 did not import a requirement to apply the EU law concept of proportionality to cases under Article 20(2) where the conduct was committed after the end of the transition period.
The UT allowed SSHD’s appeal, set aside the First-tier Tribunal’s decision, and remitted the appeal to the First-tier Tribunal.
The decision may be accessed here.
Julia Smyth and Harriet Wakeman represented SSHD
Tim Buley KC and Alex Shattock represented The AIRE Centre
