Tomas Molnar v Secretary of State for the Home Department [2026] EWCA Civ 31

[2026] EWCA Civ 31

Case Nos: CA-2025-000384 &

CA-2024-002573

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

The Honourable Mr Justice Dove, President, and Upper Tribunal Judge Hanson

UI-2023-004566

Upper Tribunal Judge Hoffman

UI-2024-002820

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29 January 2026

Before

LORD JUSTICE BAKER

LADY JUSTICE ELISABETH LAING

LADY JUSTICE FALK

Between

TOMAS MOLNARAppellant

THE INDEPENDENT MONITORING AUTHORITY for CITIZENS’ RIGHTS AGREEMENTS

Simon Cox and Althea Radford (instructed by Turpin Miller LLP) for Tomas Molnar

Tom Hickman KC, Gordon Lee and Bojana Asanovic (instructed by Turpin Miller LLP) for Katarina Vargova

Julia Smyth KC, Natasha Jackson, Harriet Wakeman and Claudia Hyde (instructed by The Treasury Solicitor) for Respondent in both cases

Ian Rogers KC for Independent Monitoring Authority for the Citizens’ Rights Agreements

Tim Buley KC and Alex Shattock (instructed by Herbert Smith Freehills Kramer LLP) for AIRE Centre

Hearing Hearing dates: 19 and 20 November 2025

Further written submissions 19 January 2026

Approved Judgment

This judgment was handed down remotely at 11.00 am on 29 January 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

[1]These two appeals are about the interpretation of the agreement under which the United Kingdom left the European Union (‘the EU’). That treaty is called the Withdrawal Agreement (‘the WA’). Both Appellants (‘Ms Vargova’ and ‘Mr Molnar’) are citizens of member states of the EU. They have indefinite leave to remain (‘ILR’) in the United Kingdom under Appendix EU of the Immigration Rules (HC 395 as amended) (‘the Rules’). They were both convicted of offences committed after Implementation Period Completion Day (‘the Day’). They both received sentences of more than 12 months’ imprisonment. The issue in these appeals is what regime applies to the deportation of people like Ms Vargova and Mr Molnar. Is it solely the regime in national legislation, or something different? If it is something different, and EU law is still relevant, to what extent do the provisions of the Citizens’ Rights Directive, that is, Directive 2004/38 (‘the CRD’), still bind the United Kingdom and therefore apply in such cases?

[2]The Secretary of State made separate decisions to deport Ms Vargova and Mr Molnar (‘decision 1’ and ‘decision 3’). They appealed against those decisions to the First-tier Tribunal (Immigration and Asylum Chamber) (‘the F-tT’) under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, SI No 2020 61 (‘the 2020 Regulations’). In each case, the F-tT allowed the appeal on the ground that the Secretary of State had not (in short) considered the proportionality of their removal before making decision 1 or 3 (as the case might be). The Secretary of State appealed to the Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’) against the determination of the F-tT in each case (‘determination 1’ and ‘determination 2’). The UT allowed the appeals of the Secretary of State in determination 3. The UT held, in short, that the F-tT had erred in law in each case in holding that there was any proportionality test. The Appellants now appeal to this court with the permission of Lewis LJ.

[3]On this appeal, Ms Vargova was represented by Mr Hickman KC, Mr Lee and Ms Asanovic. Ms Vargova’s skeleton argument, however, was drafted by Mr De La Mare KC and her current junior counsel. Mr Molnar was represented by Mr Cox and Ms Radford. The Secretary of State was represented in both appeals by Ms Smyth KC, Ms Jackson and Ms Hyde. Ms Wakeman appeared on behalf of the Secretary of State on the papers. There were also two interveners: the Independent Monitoring Authority for the Citizens’ Rights Agreement (‘the IMA’) and the AIRE Centre. Mr Rogers KC represented the IMA. The AIRE Centre was represented by Mr Buley KC and Mr Shattock. We thank all counsel for their written and oral submissions, which were very clear. Those submissions helped greatly to increase our understanding of the issue of construction and of its complicated background.

[4]There are two main grounds of appeal. i. Did decision 1 amount to a ‘restriction’ on the rights of residence of Ms Vargova? ii. Must the Secretary of State when making a decision to deport based on a crime (or crimes) committed after the Day consider whether or not deportation is proportionate; and/or must the F-tT, on any appeal, consider the proportionality of deportation? For the reasons given in this judgment, I would have allowed the appeals on ground 1, had it been the only ground. But I would dismiss both appeals on ground 2. As the effect of the WA is clear, there is no need for us to consider whether to make a reference to the Court of Justice of the European Union (‘the Court of Justice’).

[5]After I have described the facts, I will summarise the domestic and EU legislation (and the relevant authorities), before turning to the terms of the WA. I will then consider and decide the rival arguments. The facts Ms Vargova

The facts

[6]Ms Vargova was born in Slovakia on 4 April 1996. She arrived in the United Kingdom in 2007, when she was 21. She was given ILR on 5 January 2021. By the date of decision 1 (12 November 2022), she had been living in the United Kingdom for 15 years, for nearly all of her adult life. The F-tT found, in determination 1, that she had worked and exercised her rights under the Treaty for most of the time that she had been in the United Kingdom (13 years).

[7]She had a serious car accident in January 2022 and lost her job. She is said still to be suffering from the effects of that accident. She was convicted of two counts of possessing, on 20 July 2022, controlled drugs of Class A (cocaine and heroin), with intent to supply them. She was sentenced to imprisonment for two years and one month.

[8]Decision 1 told Ms Vargova that she was a ‘foreign criminal’ and that the Secretary of State was obliged to make a deportation order (‘DO’) against her, under section 32(5) of the UK Borders Act 2007 (‘the 2007 Act’), unless one of the exceptions applied. Her deportation was conducive to the public good. She was asked to tell the Secretary of State of any reasons why she should not be deported, including any human rights issues. If she did, the Secretary of State would consider further whether she should be deported. If the Secretary of State did make a DO, she would be required to leave the United Kingdom, would not be able to return, and her ILR would cease. She could be detained under section 36(1) of the 2007 Act while the Secretary of State considered whether section 32(5) applied, and, if it did, pending the making of a DO. Decision 1 generated a right of appeal under regulation 6 of the 2020 Regulations.

[9]Ms Vargova appealed against decision 1 on 6 December 2022. She relied on her rights under the WA. In determination 1 the F-tT held that she was entitled to protection under the WA because she had a right of residence before the Day. She was within the scope of articles 10(1)(a) and 15 of the WA, and she had EU settled status under article 18 of the WA. The F-tT held that article 21 of the WA, read with the CRD, imports the whole of Chapter VI of the CRD.

[10]The F-tT accepted that she committed the offences because, after the car accident, she started taking drugs, had money troubles, and ‘fell into supplying’ Class A drugs. That did not excuse her offences. She was at a low risk of re-offending and at a low risk of causing serious harm to others. The F-tT held that decision 1 was disproportionate under the WA.

[11]The Secretary of State applied for permission to appeal. The Secretary of State was given permission (on different grounds of appeal) by both the F-tT and by the UT.

[12]The UT allowed the appeal of the Secretary of State in determination 3 promulgated on 26 September 2024. There are two significant aspects of the UT’s reasoning in determination 3. First, decision 1 was not a ‘restriction’ on Ms Vargova’s right to reside, with the result that the WA did not apply to her. There would be no ‘restriction’ until the Secretary of State had made a DO, which the Secretary of State refers to as a ‘Stage 2 decision’. Second, article 21 of the WA, read with the CRD, does not bring into national law any EU safeguard requiring an individualised assessment of the proportionality of removal (paragraphs 63 and 70-72 of determination 3). An appellant was entitled, however, to some ‘procedural protections’. Those were ‘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’ (paragraph 66 of determination 3).

[13]Ms Vargova had also made a human rights claim on 2 February 2023. The Secretary of State refused that claim in a decision dated 16 February 2024 (‘decision 2’), and made a DO under section 32(5) of the UK Borders Act 2007 (‘the 2007 Act’). Ms Vargova also appealed against decision 2 (‘appeal 2’). Appeal 2 has not yet been decided. Mr Molnar

[14]Mr Molnar was born in the Czech Republic in 2002. He came to the United Kingdom with his mother in 2012, when he was 10. They are both Czech nationals. She was exercising her Treaty rights to enter, and live and work in, the United Kingdom. She was employed from the tax year 2012-13 until 2015-16. He was being educated between 2012 and 2022. Mr Molnar was given ILR under Appendix EU of the Rules on 15 October 2019.

[15]On 10 March 2022 Mr Molnar was convicted of three offences committed on 14 January 2022: possessing a controlled drug of Class A (cocaine) with intent to supply, and possessing criminal property and a knuckleduster. He was sentenced to 27 months’ imprisonment. Mr Molnar finished his sentence on 18 April 2023. The Secretary of State then detained him. The F-tT granted him bail on 27 April 2023.

[16]In decision 3, dated 18 June 2022, the Secretary of State told Mr Molnar that he was a ‘foreign criminal’, that section 32(5) of the 2007 Act required the Secretary of State to make a DO unless one of the exceptions applied, and that his deportation was conducive to the public good. He should tell the Secretary of State if there were any reasons why he should not be deported, including any human rights issues. If he did so, the Secretary of State would consider those representations. If the Secretary of State did make a DO, Mr Molnar would be required to leave the United Kingdom and would not be allowed to return: his ILR would cease. He could be detained while the Secretary of State considered whether section 32(5) of the 2007 Act applied, and if it did, pending the making of a DO. Decision 3 generated a right of appeal under regulation 6 of the 2000 Regulations.

[17]On 4 January 2023, Mr Molnar made a human rights claim. The Secretary of State refused it in decision 4 (dated 22 September 2023). Mr Molnar appealed to the F-tT against decision 3 and decision 4 (‘appeal 3’).

[18]On 21 September 2023 the Secretary of State made a DO. That did not generate a right of appeal, but the Secretary of State’s refusal of Mr Molnar’s human rights claim (in decision 4) did. Mr Molnar appealed to the F-tT against decision 4 (‘appeal 4’).

[19]The F-tT heard appeal 3 and appeal 4 together. The F-tT allowed both appeals. The F-tT held that Mr Molnar came within the personal scope of article 10 of the WA and that he had a right of residence under the WA. The Secretary of State did not dispute that decision 3 was a restriction on Mr Molnar’s right of residence. The F-tT applied article 20.2 of the WA, because Mr Molnar committed his offences after the Day. The F-tT accepted that articles 27 and 28 of the CRD did not apply. It held nevertheless that Mr Molnar was entitled to ‘the procedural safeguard that the decision complies with the principle of proportionality’. Relying on a decision of this court in Secretary of State for the Home Department v AA (Poland)

[2024] EWCA Civ 18

, the F-tT rejected the argument of the Secretary of State that an article 8 assessment in accordance with Part 5A of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) satisfied the requirement to assess the proportionality of Mr Molnar’s deportation. The Secretary of State had not considered proportionality, so decision 3 breached Mr Molnar’s rights under the WA. That meant that the decision 3 was not ‘in accordance with the law’, and breached article 8.2. The F-tT allowed appeals 2 and 3, and remitted the case to the Secretary of State.

[20]The Secretary of State appealed to the UT on one ground only: that article 21 does not impose a requirement of proportionality. The F-tT gave the Secretary of State permission to appeal. By the date of the hearing in the UT, the UT had decided Ms Vargova’s appeal. The UT, in short, followed the decision of the UT in Vargova. The domestic legislation Deportation The Immigration Act 1971 Deportation generally

The domestic legislation

[21]Section 3 of the Immigration Act 1971 (‘the 1971 Act’) is headed ‘General provisions for regulation and control’. Section 3(5)(a) provides that a person who is not a British citizen is liable to deportation if the Secretary of State deems his deportation to be conducive to the public good. ‘Without prejudice to the operation of section 3(5)’, section 3(6) provides that a person who is not a British citizen is also liable to deportation if, after he reaches the age of 17, he is convicted of an offence for which he is punishable with imprisonment and, on his conviction, is recommended for deportation by a court which has power under the 1971 Act to make such a recommendation.

[22]Section 3(5A) prevents the Secretary of State from deeming a person’s deportation to be conducive to the public good under section 3(5) if his deportation would be a breach of the United Kingdom’s obligations under article 20 of the WA or would be a breach of those obligations if they applied to that person. Section 3(6A) prevents a court from making a recommendation under section 3(6) for the deportation of a ‘relevant person’ if the offence for which the person was convicted ‘consisted of or included conduct that took place before’ the Day. ‘Relevant person’ is defined in section 3(10). It is common ground that each of the Appellants is a ‘relevant person’.

[23]Section 6 is headed ‘Recommendations by court for deportation’. Section 6 makes further provision about such recommendations. Where a person is liable for deportation under section 3(6) (see paragraph 21*, above), the court having power to sentence him for the offence may recommend him for deportation (section 6(1)). Section 6(2) requires a court to give such a person notice before making any such recommendation. The validity of any such recommendation can only be questioned on an appeal against the recommendation or against the conviction on which it is based (section 6(5)). The Secretary of State may not make a DO on the recommendation of a court so long as any appeal against the recommendation or the underlying conviction is pending (section 6(6)).

[24]Section 5 is headed ‘Procedure for, and further provisions as to, deportation’. Section 5(1) provides:

‘Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say, an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force’

. Section 5(2) gives the Secretary of State power at any time to revoke a DO. Section 5(5) gives effect to Schedule 3 ‘with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation’. Powers of the Secretary of State, immigration officers and constables in connection with detention pending deportation

[25]Schedule 3 is headed ‘Supplementary provisions as to deportation’. Paragraph 1 of Schedule 3 is headed ‘Removal of persons liable to deportation’. Paragraph 1(1) gives the Secretary of State power, where a DO is in force, to give directions for the removal of the person concerned to a place specified in those directions. Paragraph 2 is headed ‘Detention or control pending deportation’. Where a recommendation for deportation made by a court is in force, and that person is not detained pursuant to a sentence of the court, ‘he shall be detained pending the making of a deportation order’ unless the court which made the recommendation grants bail, or he is released on immigration bail under the Immigration Act 2016 (‘the 2016 Act’) (paragraph 2(1)). By paragraph 2(2), a person who is not detained pursuant to a sentence of the court may be detained under authority of the Secretary of State while the Secretary of State considers whether to make a DO, and where the Secretary of State decides to make a DO, pending the making of a DO. Paragraph 2(2) only applies if the Secretary of State has notified the person in writing that she is considering whether to make a DO, or where no such notice has been given, the Secretary of State has notified the person in writing that she has decided to make a DO (paragraph 2(2A)). If a DO is in force against a person, he may also be detained (and if detained under paragraph 2(1) or 2(2) shall continue to be detained) under the authority of the Secretary of State pending his removal, unless released on immigration bail (paragraph 2(3)). Paragraph 2(3A)-2(7) makes further provision about such detention.

[26]Paragraph 2(4) applies paragraphs 17, 18AA and 25A-25E of Schedule 2 to the 1971 Act to detention under paragraphs 2(2) and 2(3). Paragraph 17 gives a constable or immigration officer power to arrest, without a warrant, a person who is liable to detention under paragraph 16 of Schedule 2. Paragraph 18A gives a constable or an immigration officer power to search a person who is detained under paragraph 16 of Schedule 2. Paragraphs 25A-25E give further extensive and intrusive powers to search premises, and to search people for specific items, such as, for example, a driving licence. The UK Borders Act 2007 Deportation generally

The UK Borders Act 2007

[27]‘Foreign criminal’ is defined in section 32(1) of the UK Borders Act 2007 (‘the 2007 Act’) by reference to section 32(2) and (3). By section 32(4), ‘For the purpose of section 3(5)(a) of the Immigration Act 1971…, the deportation of a foreign criminal is conducive to the public good’. Section 32(5) imposes a duty on the Secretary of State to make a DO in relation to a foreign criminal, subject to the exceptions in section 33 of the 2007 Act. Ms Vargova and Mr Molnar are both foreign criminals for this purpose. Section 32(6) prevents the Secretary of State from revoking a DO made under section 32(5) unless he thinks that an exception under section 33 applies, the application is made while the foreign criminal is outside the United Kingdom, or section 34(4) applies.

[28]Exception 1 is where the deportation of a foreign criminal would breach his Convention rights (section 33(2)(a)). Exception 7 is where the foreign criminal is a ‘relevant person’ and the offence of which he was convicted consisted of or included conduct that took place before the Day (section 33(6B)). ‘Relevant person’ is defined in section 33(6C). In essence it is a person who is within the scope of the WA. If an exception applies, that does not prevent the making of a DO, but there is no assumption about whether the person’s deportation is, or is not, conducive to the public good (section 33(7)).

[29]Section 32(5) requires the Secretary of State to make a DO ‘at a time chosen by the Secretary of State’ (section 34(1)). Section 34(2) prevents the Secretary of State from making a DO while an appeal against conviction or sentence is pending. The Secretary of State may withdraw a decision that section 32(5) applies or revoke a DO made in accordance with section 32(5) in the circumstances set out in section 34(4) and may make a new decision that section 32(5) applies and make a DO in accordance with section 32(5).

Powers of detention in connection with deportation under the 2007 Act

[30]Section 36(1) of the 2007 Act gives the Secretary of State powers to detain a person who has served a sentence of imprisonment while the Secretary of State considers whether section 32(5) applies, and where the Secretary of State thinks that it does, pending the making of a DO. Section 36(1A)-(1E) make further provision about detention under section 36. Section 36(2) requires the Secretary of State to detain a person once a DO has been made unless the person is given immigration bail. The provisions of the 1971 Act which apply to detention under paragraph 2(3) of Schedule 3 to the 1971 Act also apply to detention under section 36(1) (see paragraphs 25 and 26, above). Appeals The Nationality, Immigration and Asylum Act 2002

Appeals

[31]Part 5 of the 2002 Act is headed ‘Appeals in respect of Protection and Human Rights Claims’. Part V (as it was originally) was significantly amended, including its heading, by the Immigration Act 2014 (‘the 2014 Act’). Section 81 defines ‘the Tribunal’ as the F-tT. Section 82 is headed ‘Right of appeal to the Tribunal’. Section 82(1)(a) and (b) gives a person (‘P’) a right of appeal to the F-tT where the Secretary of State has decided to refuse a protection, or a human rights, claim by P. Section 84 is headed ‘Grounds of appeal’. Section 84(2) provides that an appeal under section 82(1)(b) ‘must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998’ (‘the HRA’). There is therefore no longer a specific statutory right of appeal against a decision to deport a person (whether or not made in connection with ‘automatic’ deportation under the 2007 Act). A person only has a right of appeal if he or she has made a protection claim or a human rights claim and the Secretary of State has refused it. Before the amendments made by the 2014 Act, section 86(3) of the 2002 Act required the Tribunal to allow an appeal in so far as it thought that ‘(a) a decision against which the appeal is brought is or is treated as being brought was not in accordance with law (including immigration rules)’ or ‘(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently’. Section 86(3) was repealed by the 2014 Act, reducing the remedies available on an appeal.

[32]Part 5A was inserted in the 2002 Act by section 19 of the 2014 Act. Section 19 of the 2014 Act and Part 5A of the 2002 Act are headed ‘

Article 8 of the ECHR

: Public Interest Considerations’. Section 117A of the 2002 Act is headed ‘Application of this Part’. Section 117A(1) provides that Part 5A applies where ‘a court or tribunal is required to determine whether a decision made under the Immigration Acts(a) breaches a person’s right to respect for private and family life under Article 8, and

(b) as a result would be unlawful under section 6 of’ the HRA. By section 117A(2) a court or tribunal must, when it considers ‘the public interest question’ have regard ‘(in particular)’, in all cases, to the considerations listed in section 117B, and ‘in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C’. Section 117A(3) defines ‘the public interest question’ for the purposes of section 117A(2). It is ‘the question whether an interference with a person’s right to respect for private and family life is justified under Article 8(2)’.

[33]Section 117B is headed ‘Article 8: public interest considerations applicable in all cases’. Section 117B(1) provides that ‘The maintenance of effective immigration controls is in the public interest’. Section 117B(4)(b) provides, for example, that ‘Little weight should be given to…a relationship formed with a qualifying partner that is established by a person at a time when the person is in the United Kingdom unlawfully’.

[34]Section 117C is headed ‘Article 8: additional considerations in cases involving foreign criminals’. The deportation of foreign criminals is in the public interest (section 117C(1)). The more serious the offence, the greater is the public interest in the deportation of a foreign criminal (section 117C(2)). In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies (section 117C(3)). If C has been sentenced to more than four years’ imprisonment, ‘the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2’ (section 117C(6)). In NA (Pakistan) v Secretary of State for the Home Department

[2016] EWCA Civ 662

;

[2017] 1 WLR 207

this court held that the failure to provide in section 117C that medium offenders (that is, those who had been sentenced to between 12 months’ and four years' imprisonment) could escape deportation if there were very compelling circumstances over and above Exceptions 1 and 2 was an obvious drafting error and would be incompatible with their article 8 rights in some cases. This court held that, on its true construction, section 117C(3) means that the public interest does not require the deportation of medium offenders who do not meet the conditions of Exceptions 1 or 2 if their case falls within the terms of section 117C(6). The considerations listed in section 117C(1) to (6) ‘are to be taken into account where a court is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted’ (section 117C(7)). The effect of section 117C as interpreted by this court is that if a person is not within one of the exceptions in section 117C, he or she has to meet a demanding test in order to avoid deportation.

[35]Some of the terms used in Part 5A are defined in section 117D. ‘Article 8’ means

article 8 of the European Convention on Human Rights

(‘the ECHR’). A ‘foreign criminal’ includes a person who is not a British citizen, who has been convicted in the United Kingdom of an offence, and who has been sentenced to a period of imprisonment of at least 12 months.

The EU legislation: Directive 2004/38 EC

[36]The title of the CRD refers to the ‘right of citizens of the Union and their family members to move and reside freely within the territory of the Member States’. The CRD amended and repealed earlier legislation. It has 31 recitals. The first three refer to citizenship of the European Union (which ‘should be the fundamental status of nationals of’ member states) and to the right of free movement, which is ‘one of the fundamental freedoms of the internal market’. The CRD was necessary to ‘simplify and strengthen the right of free movement and residence of all Union citizens’. Five further recitals, (22), (23), (24), (25) and (28) are also significant.

[37]Recital (22) refers to the restrictions on free movement which are permitted by the Treaty ‘on grounds of public policy, public security or public health’. In order more tightly to define ‘the circumstances and procedural safeguards subject to which Union citizens…may be denied leave to enter or may be expelled’, the CRD was to replace earlier legislation ‘on the coordination of measures concerning the movement and residence of foreign nationals, which are justified on grounds of public policy, public security or public health’.

[38]Recital (23) records that expulsion on grounds of public policy or public security can seriously harm people who have exercised their rights under the Treaty, and have become ‘genuinely integrated’ in the host state. ‘The scope for such measures should be limited in accordance with the principle of proportionality to take account of’ their ‘degree of integration’, and the length of time they have lived in the host state, ‘their age, state of health, family and economic situation and the links with their country of origin’.

[39]Recitals (23) and (24) are linked by the word ‘Accordingly’. Recital (24) articulates a principle that the greater a person’s integration in the host state, the greater their protection against expulsion should be. ‘Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against’ a citizen of a member state who has lived ‘for many years’ in the host member state. Recital (25) says that ‘Procedural safeguards should also be specified in detail in order to ensure a high level of protection of the rights of Union citizens in the event of their being denied leave to enter or reside in another Member State, as well as to uphold the principle that any action taken by the authorities must be properly justified’. Recital (26) adds that ‘In all events, judicial redress procedures should be available to Union citizens …who have been refused leave to enter or reside’ in another member state. Abuse of rights and fraud are dealt with in recital (28). To guard against those, ‘notably marriages of convenience’ and similar arrangements, member states should ‘have the possibility to adopt the necessary measures’.

[40]Chapter III deals with the right of residence. There are three such rights. The first two are conferred by provisions of Chapter III. Article 6 confers a right of residence for ‘up to three months’ without any formalities. Article 7 confers right of residence for more than three months on various conditions, such as being a worker or self-employed person. Article 7(3) provides for the retention of that right in some circumstances, even if the relevant condition is no longer met. Articles 8, 9, 10 and 11 deal with various administrative formalities and the issue and validity of residence cards. Articles 12 and 13 provide for family members to retain their rights of residence in some circumstances, and article 14 for the retention, in certain circumstances, of the right conferred by article 6. The rights conferred on the members of the families of EU citizens are sometimes referred to as ‘derivative rights’.

[41]Article 15 is headed ‘Procedural safeguards’. It provides: ‘1. The procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement …on grounds other than public policy, public security or public health…[my emphasis] 3. The host Member State may not impose a ban on entry in the context of an expulsion decision to which paragraph 1 applies’.

[42]Chapter IV deals with the right of permanent residence, the third type of right of residence. Article 16 sets out a general rule for that right, which is acquired after five years. That right is not subject to the conditions in Chapter III (article 16(1)). Article 17 provides for various exemptions. Articles 19-20 deal with administrative formalities, and article 21 with how continuous residence is proved. Article 26 enables member states to check whether people are complying with domestic requirements to carry identity cards, on the same basis as they check compliance with such rules by their own nationals, and to impose similar sanctions for the breach of any such rules.

[43]Chapter VI is headed ‘Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health’ (my emphasis). The most significant articles of Chapter VI are set out in an annex to this judgment. I will highlight a few points here. Article 27 is headed ‘General principles’. Subject to the provisions of Chapter VI, member states may ‘restrict the freedom of movement and residence’ of citizens of member states, ‘irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends’ (article 27(1)) (my emphasis).

[44]In short, article 27(2) requires measures taken ‘on grounds of public policy or public security’ to comply with ‘the principle of proportionality’ and to be based on personal conduct ‘exclusively’. Previous criminal convictions are not ‘in themselves…grounds for taking such measures’. The ‘personal conduct of the individual’ must be a ‘genuine, present and sufficiently serious threat affecting one the fundamental interests of society’. Justifications ‘isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted’. Article 27(3) permits a member state, in some circumstances, if they consider it ‘essential’ to ask other member states ‘to provide information’ about a person’s police record; but ‘Such enquiries shall not be made as a matter of routine’.

[45]Article 28 is headed ‘Protection against expulsion’. In short, article 28(1) requires a member state, before making an expulsion decision ‘on grounds of public policy, or public security’, to take into account various specific factors such as how long the person has spent in the host state, their age, health and family, and their integration in the host state. If a person has a right of permanent residence, such a decision can only be taken on serious grounds of public policy, or public security (article 28(2)). Once a citizen of a member state has been living in the host state for the previous ten years, an expulsion decision can only be taken ‘on imperative grounds of public policy and public security’ (article 28(3)) (my emphases).

[46]Article 30 is headed ‘Notification of decisions’. Article 30(1) requires member states to notify the person concerned, in writing, of any decision taken under article 27(1). By article 30(2), he is to be told, ‘precisely and in full, of the public policy, public security or public health grounds on which the decision’ in his case was based (my emphasis). The notification must specify, among other things, his right of appeal (article 30(3)).

[47]Article 31 is headed ‘Procedural safeguards’. In short, article 31(1) gives ‘the persons concerned’ access to ‘judicial and, where appropriate, administrative redress procedures’ in the host member state, ‘to appeal against or seek review of any decision taken against them on grounds of public policy, public security or public health’ (my emphasis). An application for appeal or review may in some circumstances suspend removal, with three specific exceptions (paragraph 31(2)). Article 31(3) requires the redress procedures to allow for ‘a full examination of the legality of the decision, as well as the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28’.

[48]Article 32 deals with the length of exclusion orders. People who have been excluded on ‘grounds of public policy, public security or public health’ may, ‘after a reasonable period’, apply for the exclusion order to be lifted, and in any event after three years, by arguing that there has been a material change in circumstances (my emphasis). Article 33(1) prevents member states from issuing expulsion orders ‘as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements’ of articles 27-29. Article 33(2) applies if an expulsion order is enforced more than two years after it was issued. In such a case, member states must check whether the person concerned is ‘currently and genuinely a threat to public policy or public security’ and check whether there has been any material change in circumstances.

[49]Article 35 is not in Chapter VI. It is one of the ‘Final provisions’ of the CRD. It is headed ‘Abuse of rights’. It enables member states to ‘adopt the necessary measures to refuse, terminate or withdraw any right conferred by [the CRD] in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31’.

The relevant decisions of the Court of Justice

[50]The Appellants’ counsel relied on to two decisions of Court of Justice, R v Bouchereau (‘Bouchereau’) (Case 30/77)

[1978] 1 QB 732

and Chenchooliah v Minister for Justice and Equality (

Case C-94/18

)

[2020] 1 WLR 1801

(‘Chenchooliah’).

Bouchereau

[51]The applicant was a French national working in England. When he was convicted for a second time of the possession of dangerous drugs a magistrate indicated that he was minded to make a recommendation, under section 6(2) of the 1971 Act, that the applicant be deported from the United Kingdom under section 3(6) of the 1971 Act. The applicant argued that article 48 of the EEC Treaty and articles 2 and 3 of Directive No 64/221 (‘Directive 1’) prevented the magistrate from doing that.

[52]Article 48 provided for the right of free movement within the EEC. Article 2 of Directive 1 applied to ‘all measures’ concerning entry into the territory, issue or renewal of residence permits or expulsion from their territory taken by member states on grounds of public policy, public security or public health. Article 3 of Directive 1 provided: ‘1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned. 2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures’.

[53]The magistrate referred three questions to the Court of Justice. The only question which is relevant in these appeals is the first question. That was whether a recommendation for deportation by a court, ‘being persuasive but not binding on the executive authority’ was a ‘measure’ within the meaning of article 3(1) and (2).

[54]At p 749A, the Court of Justice recorded its understanding that a recommendation for deportation by a court ‘is not binding on the Secretary of State but is a precondition on the basis of which the Secretary of State is empowered to make a deportation order. In fact most recommendations made by a court are implemented. However, under English law before a recommendation for deportation may be made, written notice has to be served on the defendant informing him of the rights attached to patrial status’.

[55]The United Kingdom Government submitted that a judicial decision by a national court could not amount to a ‘measure’ for the purposes of articles 3(1) or (2) of Directive 1, and, in any event, a ‘mere recommendation’ by a national court could not do so. It argued that the Secretary of State had ‘full discretion’ about whether or not to make a DO, and ‘a mere judicial recommendation for deportation’ did not end the right to stay in the United Kingdom. In deciding whether or not to make a DO, the Secretary of State was bound by Community law and would not make a DO if it was contrary to Community law. The decision of the Secretary of State was subject to judicial review in the domestic courts. The Secretary of State had a fuller picture than the court. A recommendation by a court is not ‘a necessary prerequisite for’ making a DO, as the Secretary of State can make a DO on his own initiative if he considers a DO to be conducive to the public good. A recommendation by a court was but one of the relevant factors for the Secretary of State. Since it was not binding, a recommendation could not be a ‘measure’ for the purposes of article 3.

[56]The Court of Justice understood that the purpose of question 1 was to find out whether a court making a recommendation for deportation must take into account the limitations in the Treaty and in Directive 1 (paragraph 7). There were two aspects to the question; first, whether a judicial decision could be a ‘measure’; and second, if so whether a mere ‘recommendation’ from a court could be a ‘measure’ (paragraph 8). A purpose of Directive 1 was to protect nationals of other member states ‘from any exercise of the powers resulting from the exception relating to limitations justified on the grounds of public policy, public security or public health, which might go beyond the requirements justifying an exception to the basic principle of freedom of movement of persons’ (paragraph 15).

[57]It was essential that ‘at the different stages of the process which may result in the adoption of a decision to make a [DO] that protection may be provided by the courts where they are involved in the adoption of such a decision’ (paragraph 16). ‘It follows’, said the Court of Justice, that ‘the concept of “measure” includes the action of a court which is required by the law to recommend in certain cases the deportation of a national of another member state’ (paragraph 17). When making such a recommendation, ‘therefore, such a court must ensure that [Directive 1] is correctly applied and must take account of the limits which it imposes on the action of the authorities in the member states’ (paragraph 18).

[58]The Court of Justice then considered whether a recommendation could be a ‘measure’, or whether the relevant ‘measure’ was the later decision by the Secretary of State. In paragraph 21 it said, ‘For the purposes of [Directive 1] a “measure” is any action which affects the right of persons coming within the field of application of article 48 to enter and reside freely in the member states under the same conditions as the nationals of the host state’ (paragraph 21).

[59]In paragraph 22, the Court of Justice opined that in the context of section 3(6) of the 1971 Act, ‘the recommendation …constitutes a necessary step in the process of arriving at any decision to make deportation order and is a necessary prerequisite for such a decision’ (paragraph 22). The Court of Justice added, in paragraph 23, that, in the context of that procedure, ‘its effect is to make it possible to deprive the person of his liberty, and it is, in any event, one factor justifying a subsequent decision by the executive authority to make a [DO]’ (paragraph 23). ‘Such a recommendation therefore affects the right of free movement and constitutes a measure within the meaning of article 3 of’ Directive 1 (paragraph 24).

Chenchooliah

[60]The applicant, who was a national of Mauritius, went to Ireland on a student visa in February 2005. She had successive periods of leave until 2012. In September 2011, she married a Portuguese national. She applied for a residence card as the spouse of an EU national. The Minister refused her application in 2012 on the grounds that her spouse was not exercising rights under the Treaty. In 2014, she told the Minister that her spouse was serving a sentence of imprisonment in Portugal. She then asked for leave to remain on the grounds of her personal circumstances.

[61]The applicant was told that the Minister was considering making a removal order against her on the grounds that her spouse had lived in Ireland for more than three months without complying with the conditions in the CRD, so that she was not entitled to stay in Ireland (‘decision a’).

[62]She was then told that the Minister was considering making a DO under section 3 of the Immigration Act 1999 (‘the IA’), based on her unlawful residence after the expiry of her last period of leave (‘decision b’). Section 3 of the IA confers a power to make a deportation order if a person has contravened an immigration restriction or if her deportation is, in the opinion of the Minister, ‘conducive to the common good’. Such an order requires a person to leave the state within a specified period and not to return. If the Minister proposes to make such an order, he must notify the person concerned of the proposal and of the reasons for it, and give her an opportunity to make representations. Such an order remains in force indefinitely, but the person concerned can apply for it to be revoked.

[63]She applied for judicial review of decision b. The Irish court gave her permission to apply for judicial review and made an interim order restraining the Minister from making a decision to deport her. The grounds for that decision were that the CRD and the domestic legislation implementing the CRD applied to her because she was a person whose application for a residence card had been processed by the Minister.

[64]The Irish court referred two questions to the Court of Justice, which the Court of Justice quoted in paragraph 49 and summarised in paragraph 50. They were ‘in essence’ whether the provisions of Chapter VI of the CRD, and, in particular, articles 27 and 28, and articles 14 and 15, meant that one or other of those provisions applied to a decision to expel a third country national on the ground that she no longer had a right of residence under the CRD when, although she had married a citizen of a member state at a time when he was exercising his right to freedom of movement (by moving to the member state and living there), he had later returned to his country of origin.

[65]The Court of Justice noted that the applicant did not claim that she had a derivative right of residence under article 7 of the CRD. Her claim to such a right had been rejected in a decision which was now final and which she did not dispute. Her case was that her residence in Ireland, which was now unlawful, could not be brought to an end by a deportation order under the IA. Her argument was that because she had been married to a citizen of a member state, she had had, at least, a temporary right of residence for three months under article 6 of the CRD, and was still covered by the CRD, so that she could only be expelled from Ireland in compliance with the rules and safeguards in the CRD, including those in articles 27 and 28.

[66]The Court of Justice noted that in accordance with article 3(1) of the CRD, citizens of a member state who move to or live in a member state other than their home state, and their family members (as defined in article 2(2)) who accompany or join them, ‘fall within the scope of’ the CRD and benefit from the rights which it confers (paragraph 54). It was common ground that her spouse had exercised rights of free movement when he left Portugal to live in Ireland. It was common ground that the applicant, because of her marriage to him, and because she lived with him for some time in Ireland, had done so by virtue of a derived right of residence conferred by article 6(2) of the CRD (paragraph 56).

[67]The Court of Justice referred to the reasoning in Metockv Minister for Justice, Equality and Law Reform (

Case C-127/08

)

[2009] QB 318

. It did not matter whether the applicant had entered Ireland before or after her spouse (paragraph 58). After the return of her spouse to Portugal, she was no longer a ‘beneficiary’ within the meaning of article 3(1) of the CRD. She no longer fulfilled the conditions of ‘accompanying or joining’ a citizen of a member state imposed by article 3(1) (paragraph 60). The status of ‘beneficiary’ can be lost if the necessary conditions are no longer met (paragraph 62). The right of residence was limited to the member state in which the national of the member state himself lives (paragraph 63). The Court of Justice had said, in paragraph 95 of Metock, that from the time when the family member derives a right of residence from the CRD, the member state ‘may only restrict those rights in compliance with articles 27 and 35’ of the CRD (paragraph 64). Those articles refer to grounds of public policy, public security or public health and to fraud and the abuse of rights.

[68]The situation was different in this case, because the applicant had not lived in Ireland with her spouse after he returned to Portugal, and she had been refused a right of residence under article 7(2) of the CRD. She did not have a retained right of residence under article 12(2) or 13(2) of the CRD, either. The principles in paragraph 95 of Metock did not therefore apply (paragraphs 64-66).

[69]The essential question, nevertheless, was whether the fact that the applicant was no longer a ‘beneficiary’ within article 3(1) of the CRD meant that an expulsion decision ‘taken essentially on the ground that she was refused a right of residence under article 7(1) [of the CRD], is governed, not by [the CRD] but only by the national law applicable outside the scope of’ the CRD (paragraph 68). The answer was ‘No’.

[70]The CRD sets conditions for the acquisition and continuing enjoyment of various rights of residence. It sets rules governing the loss of such rights, for example, where the citizen of a member state leaves the host member state (paragraph 70). The Court of Justice referred to article 15, headed ‘Procedural Safeguards’ which provides that the procedures in articles 30 and 31 apply by analogy to all decisions restricting the free movement of citizens of member states and the members of their families on grounds other than public policy, public security or public health (paragraph 71). Article 15(3) adds that a member state may not impose a ban on entry in the context of an expulsion decision (paragraph 72).

[71]The very words of article 15 ‘on pain of depriving that provision of a large part of its substance and practical effect’ mean that it must apply to ‘an expulsion decision made…on grounds wholly unrelated to any danger to public policy, public security or public health’ but which were based on facts such as those of the current case (paragraph 73). Since the applicant did not have a retained right of residence, Ireland was entitled to make a decision expelling her under article 15. But that decision must comply with the requirements of article 15 (paragraph 77).

[72]The fact that the applicant was no longer a ‘beneficiary’ did not mean that the CRD no longer applied when the host member state decided to expel her on that ground (paragraph 79). What of the application of articles 30 and 31 ‘by analogy’? That expression meant that they applied, in the context of article 15 of the CRD, ‘only if they can actually be applied, with the necessary adjustments, if appropriate, to decisions on grounds other than public policy, public security or public health’ (paragraph 81). That was not the case with article 30(2), the third indent of article 31(2), or article 31(4) (paragraph 82). The provisions, the application of which ‘must be strictly confined to’ expulsion decisions made on the grounds of public policy, public security or public health ‘do not therefore apply to decisions’ covered by article 15 of the CRD (paragraph 83).

[73]The rules governing redress procedures must comply with the requirement of an effective remedy conferred by article 47 of the Charter of Fundamental Rights (‘the Charter’) (paragraph 84). In accordance with article 31(3) of the CRD, the ‘redress procedures’ referred to must not only allow for ‘an examination of the legality of the decision concerned, as well as of the facts and circumstances on which it is based, but also to ensure that the decision in question is not disproportionate’ (paragraph 85).

[74]Because article 15(1) refers to the application ‘by analogy’ of articles 30 and 31, ‘other provisions of Chapter VI of [the CRD], including articles 27 and 28…are not applicable where a decision is adopted under article 15’ of the CRD (paragraph 86). Articles 27 and 28 of the CRD only apply if ‘the person concerned currently derives…a right of residence in the host member state’ from the CRD: see paragraph 95 of Metock (paragraph 87). In accordance with article 15(3), any expulsion decision in this case could not ‘under any circumstances’ impose a ban on re-entry (paragraph 88).

[75]So article 15 applied to a decision to expel a third country national on the ground that she no longer had a right of residence in circumstances such as the circumstances in that case. It followed that ‘relevant’ safeguards in articles 30 and 31 of the CRD applied when ‘such an expulsion decision is adopted’ and it was not possible to impose a ban on re-entry (paragraph 89).

The Withdrawal Agreement

[76]The WA has 16 recitals. Four, including recital 5, emphasise the desirability of an ‘orderly withdrawal’. Recital 4 recalls that ‘the law of the Union…in its entirety ceases to apply to the United Kingdom’ from the date when the WA comes into force. Recital 6 recognises the necessity of reciprocal protection for Union citizens and nationals of the United Kingdom, ‘where they have exercised free movement rights’ in the past, ‘and to ensure that their rights under’ the WA ‘are enforceable and based on the principle of non-discrimination’. Recital 7 says that the parties are resolved to ‘ensure an orderly withdrawal through various separation provisions aiming to prevent disruption and to provide legal certainty to citizens…as well as to judicial and administrative authorities in the Union and in the United Kingdom…’

[77]Article 1 is headed ‘Objective’. Article 2 gives some definitions, and article 3 is headed ‘Territorial scope’. The heading of article 4 is ‘Methods and principles relating to the effect, the implementation and application of this Agreement’. It provides as follows:

‘1. The provisions of this Agreement and provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law. 2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation. 3. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall be interpreted in accordance with the methods and general principles of Union law. 4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of transition period. 5. In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to the Court of Justice of the European Union handed down after the end of transition period.’

[78]Part 2 is headed ‘Citizens’ Rights’. It consists of two Titles: Title I, headed ‘General Provisions’ (articles 9-12) and ‘Title II’, headed ‘Rights and Obligations’ (articles 13-29). There are three Chapters in Title 2. Chapter 1 covers ‘Rights Related to Residence, Residence Documents’ (articles 13-23); Chapter 2, ‘Rights of Workers and Self-employed Persons’ (articles 24-26) and Chapter 3, ‘Professional Qualifications’ (articles 27-29).

[79]Article 9 gives some definitions for the purposes of Part 2. Article 10 provides for the personal scope of the WA. There is no dispute that Ms Vargova and Mr Molnar are within article 10, so I say no more about it. Article 11 makes provision about continuity of residence. Article 12 prohibits discrimination on grounds of nationality ‘within the meaning of the first sub-paragraph of’ article 18 of the Treaty on the Functioning of the European Union in the host state and in the state of work (both defined in article 9) against those who are within article 10 of the WA.

[80]Article 13.1 confers a right to reside on Union citizens and nationals of the United Kingdom, in accordance with the provisions to which it refers. Those include various provisions of the CRD, ‘subject to the limitations and conditions set out in those provisions’. Article 13.4 precludes the host state from imposing ‘any limitations or conditions for obtaining, retaining or losing residence rights…other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned’. ‘This Title’ refers to articles 13-29. Article 15 makes provision for a right of permanent residence, article 16 for the accumulation of periods of residence, and article 17 for ‘Status and changes’ (such as changes between being a student and a worker).

[81]Article 18 is headed ‘Issuance of residence documents’. Article 18.1 gives the host state power to require those living in its territory in accordance with Title 2 to apply for a new residence status ‘which confers the rights under this Title and a document evidencing such status’. Article 18.1 subjects such an application to 18 detailed conditions. Condition p is that ‘criminality and security checks may be carried out systematically on applicants, with the exclusive aim of verifying whether the restrictions set out in Article 20 [of the WA] may be applicable. For that purpose, applicants may be required to declare past criminal convictions which appear in their criminal record in accordance with the law of State of conviction at the time of the application. The host State may, if it considers this essential, apply the procedure set out in Article 27(3) of [the CRD] with respect to enquiries to other States regarding previous criminal convictions’. Condition r is that ‘the applicant shall have access to judicial, and where appropriate, administrative redress procedures’ against a refusal to grant residence status. Those must ‘allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate’. In accordance with article 18.3, pending a decision on such an application, and pending a final judgment (if judicial redress is sought) ‘all rights provided for in this Part shall be deemed to apply to the applicant, including Article 21 on the safeguards and right of appeal, subject to the conditions set out in’ article 20.4.

[82]Article 20 is headed ‘Restrictions on the rights of residence and entry’. It provides:

‘1. The conduct of Union citizens or United Kingdom nationals…who exercise rights under this Title, where that conduct occurred before the end of the transition period, shall be considered in accordance with Chapter VI of [the CRD]. 2. The conduct of Union citizens or United Kingdom nationals…who exercise rights under this Title, where that conduct occurred after the end of the transition period, may constitute grounds for restricting the right of residence by the host State or the right of entry in the State of work in accordance with national legislation. 3. The host State or the State of work may adopt the measures necessary to refuse, terminate, or withdraw any right conferred by this Title in the case of abuse of rights or fraud, as set out in Article 35 of [the CRD]. Such measures shall be subject to the procedural safeguards provided for in Article 21 of this Agreement. 4. The host State or the State of work may remove applicants who submitted fraudulent or abusive applications from its territory under the conditions set out in [the CRD], in particular Articles 31 and 35 thereof, even before a final judgment has been handed down in the case of judicial redress sought against any rejection of such an application.’

[83]Article 21 is headed ‘Safeguards and right of appeal’. It provides:

‘The safeguards set out in Article 15 and Chapter VI of [the CRD] shall apply in respect of any decision by the host State that restricts residence rights of the persons referred to in Article 10 of this Agreement’

The effect of the WA in domestic law

[84]The WA was brought into domestic law by the European Union (Withdrawal) Act 2018 (‘the 2018 Act’). The 2018 Act has been amended since it was enacted. Section 1 repeals the European Communities Act 1972 on exit day, subject to the savings in sections 1A and 1B. Section 2(1) saves ‘EU-derived domestic legislation, as it continues to have effect in domestic law on and after’ the Day, subject to section 5 and Schedule 1, and to section 5A (section 2(3)). Section 3(1) provides that direct EU legislation (as defined in section 3(2)) ‘so far as operative immediately before’ the Day ‘forms part of domestic law on and after’ the Day.

[85]Section 5(A1) provides that the principle of the supremacy of EU law ‘is not part of domestic law. This applies after the end of 2023, in relation to any enactment or rules of law (whenever passed or made)’. Section 5(A4) provides that ‘No general principle of EU law is part of domestic law on or after’ the end of 2023. Section 5(4) provides for the Charter no longer to be part of domestic law after the Day. Section 5(6) enacts Schedule 1. Section 5(7) makes section 5(A1) to (6) and Schedule 1 subject to ‘relevant separation agreement law’, and refers to section 7C for further information.

[86]Section 6 is headed ‘Interpretation of assimilated law’ and provides, among other things, for the extent to which domestic courts must or can have regard to decisions of the Court of Justice after the Day. Section 7 deals with the status of ‘assimilated law’. ‘Assimilated law’ is the term which is now used for what was previously described as ‘retained EU law’.

[87]Section 7A is headed ‘General implementation of remainder of withdrawal agreement’. The effect of section 7A(1) and (2) is that the rights, powers, liabilities, obligations and restrictions created by or arising under the WA, and the remedies and procedures for which it provides which, ‘in accordance with’ the WA ‘are without further enactment to be given legal effect or used in the United Kingdom’ are to be ‘recognised and available’ in domestic law, and ‘enforced, allowed and followed accordingly’. Every enactment is to be read and has effect subject to section 7A(2) (section 7A(3)).

[88]Section 7C is headed ‘Interpretation of relevant separation agreement law’. Section 7C(1) requires any ‘question as to the validity, meaning or effect of any relevant separation agreement law’ to be decided in accordance, in so far as they apply, with two things. The first, which is relevant here, is the instruments listed in section 7C(1)(a), which include the WA. Section 7C(2), oddly drafted for a statute, is an instruction to the reader:

‘See’, and lists, among other provisions, article 4 of the WA (quoted in paragraph 77, above). Section 7C(3) defines ‘relevant separation agreement law’

. It is defined by reference to two concepts. The first is ‘any of the’ provisions listed in section 7C(3)(a) ‘or anything which is domestic law by virtue of any of them’. The second is anything which is not in paragraph (a) ‘so far as it is domestic law for the purposes of, or otherwise falling within the scope of’, among other instruments, the WA, ‘as that body of law if added to or otherwise modified by or under this Act or by other domestic law from time to time’ (section 7C(3)(b)). Discussion Ground 1 in Ms Vargova’s appeal

Discussion

[89]Put simply, the Secretary of State’s argument is that decisions about deportation under the 2007 Act are made in two stages. The ‘stage 1’ decision (decision 1 and decision 3 in these appeals) is in substance no more than a notification that section 32(5) applies. The Secretary of State may not, and does not, make a DO unless satisfied that none of the exceptions in section 33 applies. In these cases, that second stage was the making of decision 2 and decision 4. The Secretary of State argues that it is only what she calls ‘the second stage decision’ which amounts to a relevant restriction.

[90]The Secretary of State and the Appellants all relied on the reasoning in Bouchereau. A further argument initially relied on by the Appellants to support their position was that decision 1 is a notice which generates the right of appeal under the 2020 Regulations. Mr Molnar modified that position after the hearing (see paragraph 98, below). It is said that the 2020 Regulations therefore assume that the notice given in decision 1 (and in decision 3) is a restriction on rights of residence. That assumption which underlies the conferring of appeal rights is inconsistent, it is further said, with the Secretary of State’s position in these appeals, which is that decision 1 and decision 3 did not amount to restrictions on the rights of residence of Ms Vargova and Mr Molnar.

[91]I agree that that does seem to be the assumption on which rights of appeal are conferred by the 2020 Regulations. But even if that is the assumption, the assumption might be wrong. The argument based on this apparent inconsistency is, in any event, more rhetorical than substantive. Apart from that argument, there are two main answers of substance to the Secretary of State’s case on this issue.

[92]The first answer is that the statutory scheme does not support the idea that there is a relevant distinction in automatic deportation cases between a ‘stage 1’ and a ‘stage 2’ decision. The effect of this scheme is that as soon as a person is a foreign criminal, there are restrictions on his or her right of residence which are not triggered by any decision. There are three reasons why. First, section 32 of the 2007 Act is headed ‘Automatic deportation’ (my emphasis). The effect of section 32(4) of the 2007 Act is that, as a matter of law, if a person is a foreign criminal, his or her deportation is conducive to the public good for the purposes of section 3(5)(a) of the 1971 Act, without any intervening decision by the Secretary of State to that effect. Second, if a person is a foreign criminal, section 32(5) of the 2007 Act obliges the Secretary of State to make a DO. Again, the Secretary of State makes no relevant decision. That obligation is only defeasible if(a) the foreign criminal makes representations, and

(b) the Secretary of State then accepts that one of the exceptions in section 33 applies. Even if an exception does apply, that does not prevent the Secretary of State from making a DO; and there is no presumption, either that a DO is conducive to the public good, or that it is not. Under this statutory scheme, a ‘stage 1’ decision is not, therefore, a precondition of the liability of a foreign criminal to deportation. The foreign criminal is automatically so liable. Apart from recognising that fact, and her obligation under section 32(5), no decision by the Secretary of State is necessary unless and until the foreign criminal raises an argument that an exception applies.

[93]I agree with the Secretary of State that the scheme of the 2007 Act is that decision 1 and decision 3 were, in effect, no more than notifications. That does not help the Secretary of State, however. What matters is the content of those notifications. Decisions 1 and 3, which the Secretary of State describes as ‘stage 1’ decisions, are, in substance, notice to the foreign criminal that, as a matter of law, section 32(4) and 32(5) apply in his or her case and that the Secretary of State therefore intends to deport them for that reason, in accordance with the legislation.

[94]The third reason is that as soon as section 32(5) may apply, and if the foreign criminal is no longer being detained pursuant to his sentence, the Secretary of State may detain him while the Secretary of State considers whether or not section 32(5) applies, and, where the Secretary of State thinks that section 32(5) does apply, pending the making of a DO. The Secretary of State, immigration officers and constables also have a range of other powers in such cases (see paragraphs 30, and 25 and 26, above).

[95]The second answer comes from Bouchereau. The EU legislation which applied when Bouchereau was decided was Directive 1. The relevant provisions of Directive 1 are the ancestors of Chapter VI of the CRD. Bouchereau, like these cases, was a deportation case. The question in Bouchereau was whether a recommendation for deportation by a court, which did not bind the Secretary of State was, nevertheless a ‘measure’ concerning expulsion, and therefore subject to the limits in article 3 of Directive 1. A ‘measure’ concerning expulsion is not the same as ‘a ground for restricting’ a right of residence. Indeed, it might be thought that the word ‘measure’ could include things which are not such a restriction.

[96]I do not give this semantic point any weight, however. As the Court of Justice noted in Bouchereau, a ‘measure’ is something which affected the right of free movement, and the point of finding out whether a recommendation for deportation was a ‘measure’ was to know whether the magistrate in that case was obliged to take into account the Treaty and Directive when making a recommendation for deportation. The scheme in the 2007 Act leaves no room for an assessment of proportionality. Before the Day, a different scheme, in the Immigration (European Economic Area) Regulations 2016 (2016 SI No 1052), did that job in the case of citizens of EU member states. A ‘measure’ within the meaning of article 3 of Directive 1 and a ground for restricting, or a restriction on, the right of residence in the CRD and in the WA are similar, if not identical, concepts. Their analytical function is that, if established, they are a gateway to the protections of the relevant EU legislation.

[97]The Court of Justice acknowledged that a recommendation for deportation by a court did not bind the Secretary of State to make a DO, but recognised that it was a precondition for making a DO. That reflects the two bases on which, under section 3(5) and (6) of the 1971 Act a person is ‘liable’ to deportation (see paragraph 21, above). Whether or not the Court of Justice’s understanding of the legal effect of a recommendation for deportation was correct (and some of the reasons I record in paragraphs 57 and 59 above suggest that it might not have been) does not matter. The reasoning of the Court of Justice in paragraphs 23 and 24 (see paragraph 59, above) applies a fortiori in the current legal framework. Once a person is a ‘foreign criminal’, he or she is, as a matter of law, liable to deportation, and will be deported, other things being equal, unless he or she persuades the Secretary of State that an exception applies. He or she is also immediately liable to detention, and to other measures (see paragraph 94, above).

[98]Decision 1 and decision 3 notified Ms Vargova and Mr Molnar that, as a matter of law, they were liable to automatic deportation under the 2007 Act and would be deported if they did not make representations which persuaded the Secretary of State that they should not be deported. For the reasons I have given above, the UT erred in law in holding that decisions 1 and 3 were not restrictions on their rights of residence. I should add that, after the hearing, the Secretary of State properly drew the court’s attention to the decision of Foster J in R (AA) v Secretary of State for the Home Department

[2025] EWHC 3404 (Admin)

. AA was about the eligibility for release of a prisoner on home detention curfew (‘HDC’) before the end of her sentence of imprisonment. The Secretary of State may not exercise the relevant power, conferred by section 246(1) of the Criminal Justice Act 2003 (‘the CJA’), if the prisoner is ‘liable to removal from the United Kingdom’. That phrase is defined, with some particularity, and by reference to domestic legislation, in section 259 of the CJA. This court asked the parties for written submissions on AA. I thank the parties for providing those. The material issues raised by those submissions were whether the reasoning in AA should be read across to these appeals, and, if so, whether it has implications for the jurisdiction of this court. The Secretary of State and Ms Vargova answered ‘No’ to those questions. Mr Molnar, on the other hand, submitted that this court has no jurisdiction. I accept the submissions of the Secretary of State and Ms Vargova, for two reasons. First, I agree that these appeals concern a different kind of decision from the decision notified in AA (and referred to by the Secretary of State as ‘a combined stage 1 notice’). Such a decision has only been made in cases about conduct which was committed before the Day, and not in cases like these appeals. Second, although the language of the relevant provisions is similar, the legislative context is different in two material ways. The purpose of section 259 is to define a restriction on the power of the Secretary of State to release a prisoner on HDC, and section 259 is part of domestic legislation; whereas the purpose of regulation 6 of the 2020 Regulations is to confer rights of appeal, in order to comply with the WA. I therefore accept the submission of the Secretary of State and of Ms Vargova that the relevant decisions in this case were decisions ‘to make a deportation order under section 5(1) of the 1971 Act’ for the purposes of regulation 6 of the 2020 Regulations, and that this court has jurisdiction to decide them. Ground 2

Introduction

[99]At first sight, article 20 of the WA draws, in Ms Smyth’s word, a ‘sharp’ distinction between the treatment of conduct before and after the Day. The Appellants and the Interveners say that on a close reading, the distinction is not as significant as the Secretary of State suggests. They stress the contrast between the phrase ‘shall be considered in accordance with’ in article 20.1, and the phrase ‘may constitute grounds for restricting’ in article 20.2. I will return to that point in more detail in paragraph 128, below. To anticipate somewhat, testing whether it is the right approach is not just a semantic but a substantive exercise.

[100]There were two main strands in the Appellants’ and Interveners’ argument. First, in different ways, they relied on an abstract distinction in the CRD between ‘grounds’ and ‘safeguards’. That distinction gives article 20.2 of the WA a narrow effect. It permits the United Kingdom when dealing with foreign criminals who are citizens of EU member states (and permits member states dealing with the cases of British citizens) to rely, in accordance with national legislation, on a wider concept of ‘conduct’ than the ‘grounds of public policy, public security or public health’ which are the subject of Chapter VI. They also rely on article 21, and assert that article 20.2 is, in any event, subject to article 21. They submit that article 20.2 does not disapply any other provision of Chapter VI if that provision concerns not the ‘grounds’ on which the United Kingdom seeks to restrict a right of residence, but the substantive and/or procedural approach of the United Kingdom to considering whether or not to make such a restriction.

[101]It is tempting to start with a simple, binary question. Are these cases to be decided wholly in accordance with national legislation, or not? The answer to this question will also decide what effect article 21 has in these cases. If the answer to that simple question is ‘No’, there is a further question, which is, if they are to be decided in accordance with a mixture of EU law and national legislation, which parts of which regime do and do not apply. It is not at first sight logical to consider the second question first. I will do so, nevertheless, as it is the heart of the argument of the Appellants and of the Interveners. Further, the difficulty or otherwise of answering the second question may clarify, in the light, among other things, of the repeated references in the recitals to an ‘orderly withdrawal’, and the reference, in recital 7, to the importance of legal certainty for citizens, administrative decision-makers and courts, what is the right answer to the first question. This exercise will also inform the substantive aspect of interpreting article 20, which I referred to in the last paragraph.

[102]With that introduction, I will consider ground 2 in four stages. 1. I will describe the submissions on ground 2 in more detail (paragraphs 103-121). 2. I will answer the question whether a partial application of EU and national legislation is practical (paragraphs 122-125). 3. I will then consider what articles 20 and 21 of the WA mean (paragraphs 126-136). 4. Finally, I will consider whether a reference to the Court of Justice is necessary. The submissions on ground 2 in more detail The Appellants Ms Vargova

The submissions on ground 2 in more detail

[103]In his written submissions, Mr De La Mare described the central issue as being whether article 21 of the WA requires a decision-maker or a court to assess each case such as these on its facts and to ‘apply the EU proportionality principle’ when making a decision which restricts the rights to reside of those, such as the Appellants, who are within the scope of article 10 of the WA. The WA and the CRD together require any such decision to be proportionate on the facts of that case. The core of his case was that article 31(3) of the CRD is ‘directly incorporated by article 21 of the WA’. It is ‘the irreducible safeguard required by the WA’. He also relied on article 28(1) of the CRD. Despite accepting that the tiers of protection no longer apply, he submitted that significant weight should be given to previous residence ‘in accordance with the CRD/WA’. Article 15 of the CRD was significant because it showed which provisions of Chapter VI (namely, articles 30 and 31) concern ‘procedural safeguards’. In his oral submissions, Mr Hickman for Ms Vargova stressed that if the Secretary of State is right, the United Kingdom and member states would have an unfettered right to expel those within the personal scope of the WA for anything, however trivial, as long as it could be described as ‘conduct’. Mr Hickman submitted that paragraph 85 of Chenchooliah (see paragraph 73, above) is ‘the most important paragraph in the case’.

[104]He submitted that an assessment of the proportionality of deportation was a ‘safeguard’ to which Ms Vargova was entitled. He acknowledged that the CRD has a mixture of substantive and procedural safeguards. He submitted that the true distinction in the CRD is between ‘grounds’ and ‘safeguards’. That was ‘the centre of the case’. All that article 20.2 of the WA permits the United Kingdom to do in national legislation is to widen the narrow conduct-related grounds for restricting rights of residence which are permitted by the CRD. Subject to that freedom, article 21 is very clear; Chapter VI continues to apply. He relied on the similarities between the words of articles20.1 and

20.2 (see paragraph 82, above). He suggested that it made no sense if article 20.2 excludes a proportionality assessment when article

20.3 clearly includes one in the case of abuse of rights or fraud. In response to a question from the court he explained in detail which parts of the CRD amounted to ‘safeguards’ and which related to ‘grounds’. He submitted that article 31 was a procedural safeguard and did apply to Ms Vargova, but he accepted that article 15 did not apply ‘directly’.

[105]The bar on a ban on re-entry in article 15(3) of the CRD is also a procedural safeguard, as were the parts of article 27(2) which do not deal expressly with conduct. The first sentence of article 27(2) is a safeguard but the second is not. The Secretary of State cannot deport a person to whom article 20.2 of the WA applies unless she assesses his case individually. The phrase ‘justifications isolated from the particulars of the case’ in article 27(2) is a ground. He accepted that the three tiers of protection conferred by article 28 are no longer part of our law. Rather, article 28(1) of the CRD is a safeguard and articles 28(2) and 28(3) are grounds. Most of article 31 contains safeguards, apart from article 31(2) third indent, which is not relevant. Another way of putting the argument was to say that article 21 of the WA imports all of Chapter VI of the CRD in so far as Chapter VI provides for safeguards. After the hearing Mr Hickman provided a list of the provisions of the CRD which (he contended) are safeguards, not grounds. They are articles 15(1), 15(3), article 27(2) paragraph 1 (or the first sentence of paragraph 1; a modification of his oral submissions), article 28(1), article 30 and article 31. Baker LJ asked him why he needed articles 27 and 28 as well as article 31. His answer was that the F-tT in Ms Vargova’s case had relied on them, and had been right to do so. This is a public policy case; he could rely directly on articles 27 and 28 and did not need article 31.

[106]He accepted that the concept of proportionality in EU law depends on the context (R (Lumsdon) v Legal Services Board

[2015] UKSC 41

;

[2016] AC 697

(‘Lumsdon’)). He described the proportionality for which he argued as ‘CRD proportionality’. CRD proportionality is different from the concept of proportionality in the ECHR, and does not involve a four-stage test. He did not accept the distinction, which he said was made by the Secretary of State, between substantive rules and the procedural safeguards which are entailed by those rules. The words used in article20.1 and

20.2 are similar and are about ‘grounds’. The word ‘substantive’ is not used and is an inference. The leap from ‘grounds’ to ‘substantive rules’ is not legitimate. It involved a common law distinction between procedure and substance which is not appropriate.

[107]In paragraph 95 of her skeleton argument, Ms Vargova submitted that ‘the tension between, and consequent ambiguity or lack of clarity arising from Article 20.2 and 21 WA is patent’. She submitted that the case for a reference under article 158 of the WA is ‘compelling’. In his oral submissions Mr Hickman, perhaps with less vigour, gave four reasons why there should be a reference to the Court of Justice.

Mr Molnar

[108]Mr Cox adopted Mr Hickman’s submissions. He added several points. He argued that proportionality is not a limit on the ‘grounds’ permitted in article 20.2 of the WA. It is a limit on whether the grounds justify a restriction, in other words, it is a safeguard. He urged caution about a general ruling on which guarantees might apply in any given case. In his skeleton argument he accepted that the court could make a reference to the Court of Justice. While he also submitted that the position is not acte claire, he did not positively ask for a reference. The Interveners The AIRE Centre

The Interveners

[109]The AIRE Centre was permitted to intervene in Ms Vargova’s appeal. Mr Buley adopted Mr Hickman’s submissions. He differed somewhat from Mr Hickman on the question whether articles 27 and 28 were necessary from Ms Vargova’s point of view. All that was needed was article 31(3) of the CRD, because that incorporates proportionality. He did not expressly resile from Mr Hickman’s argument, describing his own as ‘the most pared back’ version. The word ‘safeguard’ is used in the headings to articles 15 and 31 of the CRD, so whatever else might amount to a safeguard, those provisions did. In Chenchooliah the Court of Justice treated proportionality as a procedural safeguard, which supported Ms Vargova’s case. The Secretary of State could not use the WA to water down the safeguards in the CRD. Mr Buley’s primary position in his skeleton argument was that the position is clear and no reference to the Court of Justice is necessary.

The IMA

[110]Mr Rogers properly acknowledged that the skeleton argument he signed had been drafted by Mr Palmer KC. There were some differences of emphasis between his approach and that of Mr Hickman. He made ten points. Article 21 of the WA is mandatory. The relevant safeguards are in Chapter VI of the CRD. Article 15 is relevant for its interpretative value. The proportionality assessment referred to in article 31(3) of the CRD is a procedural safeguard. There is no distinction in the CRD or in the WA between procedural and substantive safeguards. Article 20.2 of the WA only permits limited divergence from EU law for conduct committed after the Day. The United Kingdom may only re-define the conduct which may be grounds for a restriction on a right of residence. When the Secretary of State makes the relevant decision, articles 27(2) and 28(1) of the CRD apply. On an appeal, article 31(3) of the CRD applies. He encouraged this court to give such guidance as it could, while acknowledging that such guidance might be obiter. He also accepted that the CRD and the WA do not draw clear lines between grounds and safeguards; in the CRD such a distinction does not matter.

[111]He agreed with Mr Hickman about the prohibition in the second sentence of article 27(2) of the use of ‘previous criminal convictions’ as a basis for restricting a right of right of residence. That was a definition of ‘grounds’. That sentence cannot be applied consistently with article 20.2 of the WA. Care has to be taken about what is and is not a safeguard. The first part of the first sentence of article 27(2) of the CRD describes a safeguard but the second part describes a ground. The draftsman of the CRD had no need to distinguish between grounds and safeguards. Article 28(1) is a proportionality safeguard on its own to which article 27(2) does not add much; indeed, if, on its own, it can be characterised as a proportionality assessment, it was difficult to see what else is needed. Article 31(3) ‘drags in’ article 28, in any event.

[112]Exception 7 in section 33 of the 2007 Act (section 33(6B)(a)) is inconsistent with the WA and must be disapplied. The legislation must permit an assessment of proportionality before any decision to make a DO.

[113]Mr Rogers submitted that there was no need for a reference to the Court of Justice as the position is clear.

The Secretary of State

[114]The Secretary of State submitted that proportionality in EU law is not a monolith. It is a flexible concept. Its content depends on the context (Lumsdon). Deprived of a relevant EU law context, it does not have a free-floating effect.

[115]All the provisions of Chapter VI are constraints on the ability of member states to remove citizens of EU member states on grounds of public policy, public security or public health. They are not merely ‘procedural’ safeguards, as the words of article 21 of the WA recognise. The three tiers of protection created by article 28 are manifestations of the proportionality principle in this specific context. Chapter VI does not distinguish between ‘the grounds’ on which member states are permitted to restrict rights of residence and other aspects of the protections conferred by Chapter VI as the grounds and the protections (which are manifestations of the proportionality principle) are parts of the same package.

[116]The phrase ‘procedural safeguards’ is used in the CRD. But the premise of the ‘procedural safeguards’ created by article 31 is that the rest of the package in Chapter VI also applies. Those ‘procedural safeguards’ are all manifestations of proportionality in this context. Article 31 is not a separate source of distinct rights. Chapter VI does not set up a concept of ‘grounds’ which is contrasted, either expressly or by implication, with ‘safeguards’. It is not therefore legitimate to impose those artificial categories on Chapter VI or, it follows, to sort its provisions into one or the other. Ms Smyth referred to three decisions of the Court of Justice in support of that approach: Orfanopoulos v Land Baden-Wűrtemburg (C-482/01)

[2005] 1 CMLR 18

; Land Baden-Wűrtemburg v Tsakouridis (C-145/09)

[2011] 2 CMLR 11

(in particular paragraphs 48-55); and K v Staatssecretaris van Veligheid en Justitie (C-366/16)

[2019] 1 WLR 1877

[117]Articles 20 and 21 of the WA must be read together and ‘in harmony’. Article 20 is the lex specialis for conduct. Article 21 must be read subject to article 20, and not the other way round. If the conduct is before the Day, a citizen of an EU member state has all the protections of Chapter VI, because ‘that conduct shall be considered in accordance with Chapter VI’. Conduct after the Day may be grounds for restricting right of residence ‘in accordance with national legislation’ (recording Ms Smyth’s emphasis). The two provisions are in direct contrast with each other. ‘Conduct’ is not a concept: it just means ‘what the person has done’. Nothing in article 20.2 of the WA uses concepts from EU law. Nothing in article 20.2 says that some rules in Chapter VI apply and others do not. To dice up protections in that way is not a ‘coherent and consistent interpretation’. The grounds for any restriction are the same: conduct. The difference is that the conditions which apply to conduct before and after the date are different.

[118]Article 21 is necessary because it covers a wider field than conduct. It does not undermine article 20.2. If article 21 is read literally and as qualifying or overriding article 20.2, ‘Article 20.2 might just as well not be there’. That is not a rational interpretation. Any procedural rights follow, and do not exist independently of, an underlying substantive right.

[119]The applicant in Chenchooliah (paragraphs 60-75, above) had briefly lived in Ireland, exercising an EU right of residence, which she lost when her spouse left Ireland. The Irish government contended that it could expel her in accordance with national legislation. Chenchooliah did not help the Appellants, for three reasons. First, the CRD was silent about a case such as hers; but unlike the WA, it did not say that national legislation applied in her situation. Second, Chenchooliah did not concern conduct committed after the Day. EU law clearly did apply in her case. Moreover, third, article 15 applied ‘the procedures’ in articles 30 and 31 ‘by analogy’. It did not refer to any other provisions of Chapter VI, and those procedures did not apply, if, in substance, they were inapplicable. Ms Chenchooliah did not, therefore, get the protections in articles 27 and 28, which she wanted, despite the reference in article 31(3) to article 28 (paragraph 86 of Chenchooliah: paragraph 74, above). The procedural safeguards in article 21 of the WA do not apply if there is no underlying right to support their application.

[120]Ms Smyth’s fall-back argument was that if anything was left, it could only be private and family life, via article 7 of the Charter. She relied on paragraph 103 of Secretary of State for Work and Pensions v AT

[2023] EWCA Civ 1307

;

[2024] KB 633

: ‘The Charter only applies if and insofar as it can attach to rights brought into domestic law via the implementation of [the WA]. This is a limited category of rights’.If the Charter did apply, therefore, there was no breach of the WA, because those limited rights (that is,

article 8 ECHR

rights) can be invoked in an appeal under section 82 of the 2002 Act.

[121]She submitted, finally, that the law is clear and that no reference to the Court of Justice is necessary.

Is a partial application of EU and national legislation practical?

[122]I have summarised the submissions of Ms Vargova and the Interveners about the extent to which EU law continues to apply to the deportation of foreign criminals who are citizens of EU member states. As I have said, Mr Rogers candidly accepted that the CRD and the WA do not draw clear lines between grounds and safeguards; and that in the CRD such a distinction does not matter. That lack of clarity was reflected in the differences between the parties about which provisions (and, indeed, which sentences) of Chapter VI belong in which box. Their disparate submissions tested the viability of this approach, and showed how difficult it would be to apply it in practice. To accept these arguments would be to accept a construction of article 20 of the WA which is not conducive, either, to an orderly withdrawal, or to legal certainty for decision-makers or for courts. These arguments are likely to lead to different interpretations in different member states and to repeated references to the Court of Justice. It is inconceivable that the parties to the WA could have intended to produce such a muddle. I would reject those arguments for that reason alone.

[123]There is also a more fundamental reason for rejecting these arguments. The Appellants and Interveners criticised the Secretary of State for relying on an alien distinction between substance and procedure. Their argument, however, depends on giving the word ‘grounds’ a weight which it will not bear in this context, and relying on a different supposed distinction, between ‘grounds’ and ‘safeguards’. Chapter VI of the CRD contains rules which control the ability of members to expel criminals who are citizens of other member states. I accept Ms Smyth’s submission that Chapter VI is an indivisible package of protection which applies in such cases, and that the phrase ‘grounds of public policy, public security or public health’, which recurs throughout Chapter VI, is no more than the gateway to that protection.

[124]Mr Rogers was right to say the distinction between grounds and procedural safeguards does not matter in the CRD. It does not matter because Chapter VI is an intricate scheme, every aspect of which protects citizens of EU member states from expulsion by the host state if they have exercised their right of free movement, but have also committed crimes. I nevertheless accept that ‘procedural safeguards’ is a phrase which is used in the CRD (recitals 22 and 25, in the headings of articles 15 and 31 and in article 35). Article 30 is headed ‘Notification of decisions’ (differing in that respect from articles 15 and 31), but article 15(1) refers to the ‘procedures provided for by Articles 30 and 31’ and article 35 of the CRD refers to the ‘procedural safeguards provided for by Articles 30 and 31’. When those ‘procedures’ or ‘procedural safeguards’ are examined, they are almost all true procedural protections, like notice of a decision and a right of appeal. There are only two potentially substantive protections (article 15(2), which is irrelevant) and the second sentence of article 31(3)).

[125]With the possible exception of the second sentence of article 31(3), the text and structure of the CRD do not support the idea that proportionality is a ‘procedural safeguard’, as that phrase is used in the CRD. Article 31(3) must be read in its context: I return to this point below, in paragraph 135. Rather, I accept Ms Smyth’s submission that what Mr Hickman called ‘CRD proportionality’ is woven into the fabric of all the protections given by Chapter VI. A very good example of that pervasive concept of proportionality is those different tiers of protection from expulsion in article 28: but the Appellants and Interveners accepted that those tiers no longer apply, which greatly reduces the force of the reference in article 31(3) to ensuring that decisions are not disproportionate.

What do articles 20 and 21 of the WA mean?

[126]The most important aspect of the context for interpreting article 20 is that EU law has ceased to apply in the United Kingdom. It can only continue to apply in so far as it does by virtue of the WA. Article 13 of the WA is a general provision with that effect, but article 13.4 permits limitations and conditions on the retention of those rights in accordance with Title II of the WA. It follows from what I have said so far that the distinction in article20.1 and

20.2 is between conduct before the Day, to which Chapter VI applies in full; and conduct after the Day, which may constitute, as anticipated by article 13.4, grounds for restricting rights of residence ‘in accordance with national legislation’ (and not in accordance with Chapter VI, which applies in full to conduct before the Day).

[127]Conduct committed before the Day must ‘be considered in accordance with Chapter VI’. That is an obligation. In such cases, that entire package of procedural and substantive protections continues to bind member states and the United Kingdom. Article 20.2 of the WA permits member states and the United Kingdom to treat the conduct committed after the Day as ‘grounds for restricting the right of residence in accordance with national legislation’. So states are given the option to treat conduct committed after the Day as ‘grounds’ (or a reason or a justification) for restricting rights of residence ‘in accordance with national legislation’. Article 20.2 does not say that Chapter VI applies to the conduct. It implies the opposite freedom, that is to consider that conduct in accordance with national legislation.

[128]The Appellants and Interveners rely on the contrast between ‘shall be considered in accordance with Chapter VI’ and ‘may constitute grounds for restricting the right of residence…in accordance with national legislation’. That contrast has three main features. First, there is a difference between an obligation and a freedom. That difference does not help their argument. The second aspect is that article20.1 refers to an identifiable body of rules, Chapter VI of the CRD, whereas article

20.2 refers to ‘national legislation’, a necessarily general term since it covers the legislation of the member states and of the United Kingdom. That does not help their argument. The third aspect is the difference between ‘shall be considered’ and ‘may constitute grounds for’. The difference between a duty and a power does not help their argument. The two provisions share a similar subject, ‘conduct’, and the same phrase, ‘in accordance with’. The only potentially significant difference is between ‘shall be considered’ and ‘may constitute grounds for’. There is no need for the second phrase in article 20.1, as the reference to Chapter VI does all the necessary work. The drafters could have chosen a range of different ways of expressing this difference between the treatment of conduct committed before and after the Day. In the context I have described, that difference has little weight, and not enough weight to reverse what seems to me to be the right construction of articles 20.1 and 20.2.

[129]It is necessary to read articles 20 and 21 together. The term ‘procedural safeguards’ is not used in article 21; its heading is ‘Safeguards and right of appeal’. For the reasons I have given, article 21 nevertheless incorporates by reference the safeguards provided by article 15, or, as the case may be, Chapter VI of the CRD ‘in respect of any decision which restricts residence rights’, and they are, in substance, procedural safeguards.

[130]There are two related questions about the extent of that incorporation in an article 20.2 case. The first is whether article 21 incorporates all the relevant procedural safeguards in an article 20.2 case, or only incorporates those safeguards in so far as they do not conflict with article 20.2. The second, specific question, is whether article 21 incorporates article 31(3) of the CRD in a case to which article 20.2 of the WA applies.

[131]I accept Ms Smyth’s submission that article 20 is a lex specialis for conduct. Its clear intention is that in the cases to which article 20.2 applies, the United Kingdom and other member states are to have the freedom to deal with conduct in accordance with national legislation. The submission that that freedom is limited to the reasons on the basis of which people who commit crimes may be subject to restrictions is incoherent for the reasons which I have given. It has no support in the text of articles 20 and 21: the textual indications are the other way. I therefore reject that submission. I also accept her point that if, as the Appellants and Interveners suggest, article 21 overrides article 20.2, article 20.2 might ‘just as well not be there’.

[132]The purpose of article 21 of the WA is, at the very least, to import the relevant procedural safeguards into the cases not covered by article 20, and to do so without restriction. An example of such a case is a case involving a restriction on rights of residence on grounds of public health. The next question is what effect it has in relation to cases covered by article 20. Article 21 is superfluous in relation to article 20.1, as article20.1 expressly incorporates Chapter VI of the CRD. Article 20.3 enables the United Kingdom and member states to continue to restrict rights of residence conferred by the CRD in the case of abuse of rights or fraud ‘as set out in’ article 35 of the CRD. It recognises that after the Day, the source of any protections (procedural or otherwise) is no longer the CRD, unless and to the extent that the WA incorporates the CRD. It therefore expressly makes such restrictions subject to ‘the procedural safeguards’ introduced by article 21 of the WA. This is an echo of article 35 of the CRD, to which it refers. Article 20.4 also expressly imports the safeguards described in articles 31 and 35 of the CRD. Article 20.3 and 20.4 could support the view that article 20 is a code for the cases which it describes, and that those cases do, or do not, attract procedural or other safeguards in accordance with the terms of article 20. It might be thought that the lack of any reference in article

20.2 to procedural safeguards in the CRD suggests that they might not apply, but that, instead, any such safeguards, if any, are to be found in national legislation.

[133]The UT held that the WA conferred some procedural safeguards on the Appellants. There was no cross-appeal by the Secretary of State. It would not have been open to the Secretary of State to argue on this appeal that the WA conferred no procedural safeguards in cases like those of the Appellants. Nor did she do so. For the reasons I have outlined in the previous paragraph, which are to some extent further supported by the express procedural protections conferred by article 18 (paragraph 82, above), it may be that the underlying logic of her case is that article 21 does not apply at all in so far as it is inconsistent with any national law governing deportation, including such procedural protections as are, or are not, conferred by national law, but that is not an issue for this court.

[134]For the reasons I have given, Chapter VI is a package of protections for those who commit crimes, and article 20.2 when contrasted with article 20.1 shows a clear intention that Chapter VI should not apply to conduct after the Day. If, as I assume, article 21 does import the CRD’s safeguards into the cases covered by article 20.2, it can only do so to the extent that that is not inconsistent with article 20.2.

[135]Those safeguards are the safeguards in articles 30 and 31 of the CRD. Those are procedural safeguards, with the possible exception of the second sentence of article 31(3), to which I said I would return. The second sentence of article 31(3) was the cornerstone of Mr De La Mare’s written argument. The second sentence of article 31(3) begins with ‘They’. That is a reference to ‘The redress procedures’ referred to in the first sentence of article 31(3). It requires the redress procedures to ‘ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28’. Chapter VI does not apply to the cases covered by article 20.2. I accept Ms Smyth’s submission that, in context, article 31(3) does not confer an independent right to a proportionality analysis: rather, it refers to the necessity for such an analysis in the relevant procedure where it would otherwise be due (so, for example, in a case about conduct committed before the Day, to which, by article 20.1 of the WA, all the relevant provisions of Chapter VI apply, including the different levels of protection from removal which depend on the length of residence in the host member state). That construction is strongly supported by the express reference to article 28 in the second sentence of article 31(3).

[136]I do not consider that Chenchooliah undermines this interpretation. The issue in Chenchooliah was whether the applicant could be expelled from Ireland under national law, or whether, because she had at one time lived in Ireland in accordance with the CRD, EU protections applied. The Court of Justice held that any such decision would be made under article 15 and must comply with article 15. It described the minimum entailed in a redress procedure in paragraph 85 (see paragraph 74, above). Paragraph 85 simply re-states the effect of article 31(3) of the CRD, which the Court of Justice applied ‘by analogy’ to her case. I accept Ms Smyth’s submissions distinguishing it (see paragraph 119, above). This case does not help the Appellants for a further reason. The Court of Justice emphasised that the proposal to expel Ms Chenchooliah was not based on grounds of public policy, public security or public health (in paragraphs 77, 81 and 83, see paragraphs 71 and 72, above). The Court of Justice invoked article 15, and not Chapter VI, because the grounds for her expulsion were ‘wholly unrelated to’ such grounds. That was why articles 27 and 28 could not apply to her case directly, or ‘by analogy’, with the result that she was left with an attenuated version of article 31. Article 15 does not apply to these appeals. It cannot therefore be a mechanism for applying articles 30 and 31 of the CRD, still less articles 27 and 28, whether by analogy or otherwise. For the reasons I have given, while article 21 applies Chapter VI to these cases, it can only do so to the extent that application is not inconsistent with article 20.2 of the WA. Conclusion on

Ground 2

[137]For those reasons, I would dismiss ground 2.

Is a reference to the Court of Justice necessary?

[138]If this is their correct interpretation, there is no relevant ambiguity in these provisions. A reference to the Court of Justice is not, therefore, necessary.

[139]I agree.

[140]I also agree. Vargova annex Article 27

General principles

[1]Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

[2]Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. 143. 3.In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned on its territory, or from the date of reporting his/her presence within the territory, as provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months.

[4]The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy, public security or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute. Article 28

Protection against expulsion

[1]Before taking an expulsion decision on ground of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State, and the extent of his/her links with the country of origin.

[2]The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory except on serious grounds of public policy or public security.

[3]An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member State, if they:(a) have resided in the host Member State for the previous ten years; or

(b) are a minor, except that if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989. Article 29 Public health … Article 30 Notification of decisions 1.The person concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them. 2.The person concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based unless this is contrary to the interests of State security. 3.The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall not be less than one month from the date of notification. Article 31 Procedural safeguards 1.The persons concerned shall have access to judicial and, where appropriate, administration redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health. 2.Where the application for appeal against or judicial review of the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision, actual removal from the territory may not take place until such time as the decision on the interim order has been taken, except: - where the expulsion decision is based on a previous judicial decision; or - where the persons concerned have had previous access to judicial review; or - where the expulsion decision is based on imperative grounds of public security under Article 28(3). 3.The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28. 4.Member States may exclude the individual concerned from their territory pending the redress procedure, but they may not prevent the individual from submitting his /her defence in person, except where his/her appearance may cause serious troubles to public policy or public security or when the appeal or judicial review concerns a denial of re-entry to the territory.

Cited in 1 later judgment

RB v Secretary of State for Work and Pensions (UC) 2026