Molnar and Vargova v Secretary of State: deportation rights under the Withdrawal Agreement

The Court of Appeal has dismissed appeals by two EU citizens challenging deportation decisions under the automatic deportation provisions of the UK Borders Act 2007, clarifying the interaction between domestic immigration law and the EU Withdrawal Agreement.

Ms Vargova, a Slovak national with indefinite leave to remain, was convicted in July 2022 of possessing Class A drugs with intent to supply and sentenced to over two years' imprisonment. Mr Molnar, a Czech national also with settled status, received a 27-month sentence in March 2022 for similar offences. Both had lived in the UK for many years exercising EU treaty rights before the end of the transition period.

The central legal question concerned whether the Secretary of State must assess proportionality before making deportation decisions for conduct occurring after Implementation Period Completion Day (31 December 2020), and whether tribunals hearing appeals must conduct such assessments. The First-tier Tribunal had allowed both appeals, finding the Secretary of State failed to consider proportionality as required by the Withdrawal Agreement. The Upper Tribunal reversed these decisions.

The two grounds of appeal

The first ground, applicable only to Ms Vargova, concerned whether the initial deportation liability notice constituted a 'restriction' on residence rights triggering Withdrawal Agreement protections. The Secretary of State argued that only the subsequent deportation order itself was a relevant restriction.

Lady Justice Elisabeth Laing, giving the leading judgement, held that the automatic deportation scheme under the 2007 Act meant that as soon as someone becomes a 'foreign criminal', restrictions on their residence rights arise immediately by operation of law, without requiring any further decision. Section 32(5) imposes a duty on the Secretary of State to make a deportation order, and section 36(1) confers immediate powers of detention. Drawing on the European Court of Justice's reasoning in Boucherau, the court found that the liability notice was indeed a restriction, as it notified the person that they were legally liable to deportation and subject to detention and other coercive measures.

The substantive proportionality question

The second and more significant ground addressed whether Chapter VI of the Citizens' Rights Directive 2004/38, which includes detailed proportionality requirements, applies to conduct after the transition period. The appellants argued for a distinction between 'grounds' for restriction (which could be governed by national law) and 'safeguards' (which remained protected by the Withdrawal Agreement).

The court rejected this approach as unworkable and contrary to the text and purpose of the Withdrawal Agreement. Lady Justice Laing noted that Chapter VI of the Directive constitutes an 'indivisible package' of protections for EU citizens facing expulsion on public policy grounds, not a collection of separable elements that could be cherry-picked.

Article 20.1 of the Withdrawal Agreement requires conduct before the end of the transition period to be 'considered in accordance with Chapter VI' of the Directive. By contrast, article 20.2 permits conduct after that date to 'constitute grounds for restricting the right of residence...in accordance with national legislation'. This represented a deliberate and clear distinction between the two categories.

The appellants and interveners (the AIRE Centre and the Independent Monitoring Authority) contended that article 21 of the Withdrawal Agreement, which requires 'safeguards' from Chapter VI to apply to any restriction decision, necessarily imported proportionality requirements even for post-transition conduct. They pointed to article 31(3) of the Directive, which requires redress procedures to ensure decisions are not disproportionate.

The court's analysis

The court found this submission conflicted with the purpose and structure of the Withdrawal Agreement. Article 20.2 would be rendered 'just as well not be there' if article 21 overrode it entirely. The supposed distinction between grounds and safeguards had 'no support in the text' and imposed artificial categories that the Directive itself does not draw.

Crucially, the court emphasised that proportionality in EU law is context-dependent. What the appellants termed 'CRD proportionality' was woven throughout Chapter VI's protections, including the three tiers of protection in article 28 based on length of residence. Since those tiers admittedly no longer applied, the reference in article 31(3) to ensuring decisions are not 'disproportionate, particularly in view of the requirements laid down in Article 28' lost much of its force.

The court distinguished Chenchooliah, a case where the Court of Justice required proportionality assessment for an EU citizen's family member being expelled on grounds other than public policy, security or health. That case concerned gaps in the Directive's coverage and applied article 15 by analogy. These appeals concerned the deliberate choice in the Withdrawal Agreement about how to treat post-transition criminal conduct.

Lady Justice Laing concluded that article 21 imports only the procedural safeguards from articles 30 and 31 of the Directive (such as notification requirements and appeal rights), and then only to the extent not inconsistent with article 20.2's clear instruction that post-transition conduct be dealt with under national legislation. Article 31(3) does not confer an independent right to proportionality analysis detached from the substantive protections of Chapter VI.

The practical result is that deportation decisions for criminal conduct after 31 December 2020 are governed by domestic law, including the structured approach in sections 117B and 117C of the Nationality, Immigration and Asylum Act 2002. Those provisions require decision-makers to give particular weight to the public interest in deporting foreign criminals, with deportation required unless 'very compelling circumstances' exist for those sentenced to over four years' imprisonment.

The court declined to make a reference to the Court of Justice, finding no relevant ambiguity in the Withdrawal Agreement's provisions. The appeals were accordingly dismissed.

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