Tomas Molnar v Secretary of State for the Home Department

For conduct committed after the end of the transition period, the Withdrawal Agreement permits residence restrictions under national legislation. Chapter VI of Directive 2004/38 does not apply as a selectively preserved package of substantive protections.

Article 21 imports procedural safeguards only so far as they are consistent with that provision. Article 31(3) does not create an independent requirement for a proportionality assessment in post-transition-period criminal deportation cases. A notification under the automatic deportation scheme may itself restrict residence rights.

These conjoined appeals concerned two EU citizens with indefinite leave to remain under Appendix EU who were convicted of offences committed after the end of the transition period and sentenced to more than 12 months’ imprisonment. The Secretary of State issued automatic deportation notifications under the UK Borders Act 2007.

The First-tier Tribunal allowed the appeals, holding that the Withdrawal Agreement required proportionality to be considered. The Upper Tribunal allowed the Secretary of State’s appeals and held that no such proportionality test applied. The central issues before the Court of Appeal were whether the notifications restricted residence rights and whether the Withdrawal Agreement required proportionality review for post-transition-period conduct.

1. Ground 1 was made out. The automatic deportation notifications were restrictions on the appellants’ residence rights. Under the UK Borders Act 2007, a foreign criminal’s deportation is automatically conducive to the public good, and the Secretary of State is under a duty to make a deportation order unless an exception is established. The person is also immediately exposed to detention and related powers. The notifications therefore communicated a present legal liability and an intention to deport, rather than merely an administrative step before a later restriction.
2. The reasoning in R v Bouchereau [1978] 1 QB 732 applied with greater force. A measure affecting free movement may arise before the executive is finally bound to make a deportation order.
3. Ground 2 failed. Article 20 of the Withdrawal Agreement draws a deliberate distinction between pre-transition-period and post-transition-period conduct. Pre-period conduct must be considered in accordance with the whole of Chapter VI of Directive 2004/38. Post-period conduct may constitute grounds for restricting residence under national legislation. Article 20 is the lex specialis for conduct.
4. Chapter VI is an indivisible package of substantive and procedural protection. Its references to public policy, public security and public health operate as the gateway to that package. They cannot be separated into independently preserved ‘grounds’ and ‘safeguards’ for post-period conduct. That construction would undermine orderly withdrawal and legal certainty.
5. Article 21 imports the relevant procedural safeguards in articles 30 and 31 only so far as their application is consistent with article 20.2. The second sentence of article 31(3), read with its reference to article 28, does not confer a free-standing right to proportionality analysis. Article 15 of Directive 2004/38 was not applicable, and Chenchooliah v Minister for Justice and Equality [2020] 1 WLR 1801 was distinguishable.
6. The provisions were sufficiently clear. No reference to the Court of Justice was necessary. The appeals were therefore dismissed on ground 2.

1. Court of Appeal (Civil Division). The court held that the automatic deportation notifications were restrictions on residence rights, but dismissed both appeals because the Withdrawal Agreement did not require a free-standing proportionality assessment for post-transition-period offences.
2. Upper Tribunal (Immigration and Asylum Chamber). The Upper Tribunal allowed the Secretary of State’s appeal in Ms Vargova’s case and held that there was no applicable proportionality test. It followed that reasoning in Mr Molnar’s case.
3. First-tier Tribunal (Immigration and Asylum Chamber). The appeals were allowed on the basis that the Secretary of State had failed to consider proportionality under the Withdrawal Agreement.