Secretary of State for the Home Department v Katarina Vargova

There is a clear distinction between criminal conduct before and after the end of the transition period. Pre-transition conduct engaging the Withdrawal Agreement must be assessed under Chapter VI of Directive 2004/38/EC. Post-transition conduct is governed by domestic law. Article 21 of the Withdrawal Agreement preserves procedural safeguards, including notice, appeal, effective remedy and fair hearing, but does not import the Directive’s substantive safeguards or EU-law proportionality principle into post-transition deportation cases. A Stage 1 deportation decision is a decision to consider making a deportation order. It does not itself restrict residence rights, so Article 21 safeguards do not apply at that stage. Any human-rights proportionality assessment belongs to the later Stage 2 decision.

The Secretary of State appealed against a First-tier Tribunal decision allowing Katarina Vargova’s appeal against a Stage 1 deportation decision. Ms Vargova, a Slovakian national with status under the European Union Settlement Scheme, had been convicted in 2022 of possessing a Class A controlled drug with intent to supply and sentenced to two years and one month’s imprisonment.

The First-tier Tribunal applied Article 21 of the Withdrawal Agreement and Articles 27 and 28 of Directive 2004/38/EC, concluding that deportation was disproportionate. The Upper Tribunal considered whether post-transition offending had to be assessed by reference to EU-law proportionality, whether the automatic deportation provisions were compatible with the Withdrawal Agreement, and whether a reference to the Court of Justice was required.

1. Appeal allowed. The First-tier Tribunal materially erred in law by treating Article 21 of the Withdrawal Agreement as importing the whole of Chapter VI of Directive 2004/38/EC, including its substantive proportionality requirements. Its decision was set aside and the appeal was remitted to the First-tier Tribunal to be linked with the pending Stage 2 human-rights appeal.
2. Article 20 creates a bright-line distinction. Conduct before the end of the transition period is considered under Chapter VI of the Directive. Conduct after that date may constitute grounds for restricting residence in accordance with national legislation. The latter category is governed by domestic law and does not attract the EU-law concept of proportionality.
3. Article 21 must be read with Article 20. For post-transition offending it preserves procedural safeguards only, including notification, information about appeal rights, access to an effective remedy and a fair hearing. Article 31(3) of the Directive does not create a free-standing substantive proportionality right on appeal.
4. A Stage 1 notice advises that the Secretary of State is considering making a deportation order. It does not itself restrict the person’s residence rights. The appeal at that stage concerns the legal validity of the decision to deport under domestic law. Article 21 safeguards become relevant when a Stage 2 deportation order is made and notified.
5. The automatic deportation scheme in sections 32 and 33 of the UK Borders Act 2007, including Exception 7, is consistent with the Withdrawal Agreement. No reference to the Court of Justice was necessary because the applicable law was clear and unambiguous. Human-rights issues fall to be considered in the Stage 2 process.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal, set aside the First-tier Tribunal decision and remitted the appeal for consideration with the pending Stage 2 appeal.
• First-tier Tribunal: Judge Anthony allowed Ms Vargova’s appeal on the basis that deportation was disproportionate under Article 21 of the Withdrawal Agreement and Articles 27 and 28 of Directive 2004/38/EC.