Secretary of State for the Home Department v VDS [2026] UKUT 152 (IAC)

[2026] UKUT 00152 (IAC)

VDS (Deportation; conduct; IP Completion Day) Italy

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Venue Heard at Manchester Civil Justice Centre

Hearing Heard on 23 September 2025

THE IMMIGRATION ACTS

Promulgated on 16 October 2025

Before

DEPUTY CHAMBER PRESIDENT PLIMMER

UPPER TRIBUNAL JUDGE BULPITT

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant

VDSRespondent

(ANONYMITY ORDER MADE)Respondent

Mr Yetman, Counsel instructed by GLD for Appellant

Ms Doerr, Counsel instructed by OTB Legal Solicitors for Respondent

1.It is important to recall that where there is conduct spanning both before and after IP completion day, a Stage 1 decision to deport applies different considerations to a subsequent Stage 2 decision to refuse a human rights claim. The SSHD is obliged to consider different matters when making the two decisions. The terms of the Withdrawal Agreement do not prevent the SSHD from only relying upon conduct occurring after IP completion day when making the Stage 1 decision, but considering conduct occurring both before and after IP completion day when making a Stage 2 decision addressing a human rights claim.

2.Whilst a previous conviction might aggravate the seriousness of an offence, the sentence is always imposed for current offence i.e. the conduct that has been particularised in the charge or indictment. Where the SSHD makes a decision to deport a person as a result of the sentence imposed for a particular offence, the decision to deport is taken in reliance on the conduct that is particularised in the offence that was proven against the person. Consequently a Stage 1 decision to deport made in reliance on an offence that was committed after IP completion day applies the domestic deportation regime in accordance with Article 20(2) of the Withdrawal Agreement. The fact that pre IP completion day conduct was considered in a separate decision-making process by the sentencing Judge, cannot be transposed into the Stage 1 decision.

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant, his wife, children and grandchildren are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant, his wife, children or grandchildren. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Date 2025-10-16

INTRODUCTION

[1]The Appellant (‘the SSHD’) has appealed against the decision of a First-tier Tribunal Judge (‘the Judge’) dated 6 February 2025, in which he allowed appeals against decisions made by the SSHD to(1) make a deportation order against VDS (‘the Stage 1 decision’), and

(2) refuse VDS’s human rights claim to remain in the United Kingdom and pursue deportation by way of a deportation order (‘the Stage 2 decision’).

[2]Both members of the Panel have contributed to this decision.

BACKGROUND FACTS

[3]VDS is an Italian and therefore a European Union (‘EU’) citizen. He is 78 and started living in the United Kingdom in 1969. While the United Kingdom was part of the EU he was able to do so in accordance with the Citizenship Directive, specifically Directive 2004/38/EC (‘Citizenship Directive’) and without being granted leave by the SSHD. He had two British children with his first wife. After his first marriage ended in divorce, VDS married AB in October 1993 and the couple continue to live together.

[4]In 2016, whilst in Gran Canaria, VDS committed an offence of sexual assault against an 11 year old. VDS denied committing the offence but was convicted two years later in 2018 following a trial, after which he was sentenced to three years imprisonment. Before he could serve that sentence, VDS left Gran Canaria and returned to the United Kingdom. The Spanish authorities issued a European Arrest Warrant and on 4 April 2019 VDS was arrested at Manchester Airport. VDS was extradited to Spain on 7 February 2020 to serve his sentence. Having been released from prison on 16 January 2023, VDS was expelled from Spain and returned to Italy.

[5]While in Italy, in June 2023 VDS made an application to the SSHD for leave to enter and remain in the United Kingdom under the EUSS. Although VDS was initially refused entry to the United Kingdom on the grounds of suitability, the SSHD later granted him Indefinite Leave to Remain (‘ILR’) on 4 August 2023. We were not told of the reasoning for this change of position, bearing in mind the 2018 conviction. For the avoidance of doubt, there were no appeal proceedings that gave rise to or arose in relation to, the SSHD’s grant of ILR. The decision to grant ILR was one taken by the SSHD without any reference or appeal to the tribunal. On the information available to us, it appears that the SSHD granted VDS ILR, in the full knowledge that he had committed a sexual offence against a minor in Gran Canaria in 2016, for which he served a three year sentence of imprisonment in Spain.

[6]On 10 August 2023 VDS returned to live in the United Kingdom in accordance with the recent grant of ILR. Only 11 days later on 21 August 2023, VDS committed the offence of sexual assault. He was convicted of that offence (again following a trial) in March 2024 and on 24 April 2024 he was sentenced to serve 12 months imprisonment. Given the issues raised in this appeal it is necessary to set out the sentencing remarks in some detail:

“You moved into your home address in this country with your wife on 10th August last year, you had been out of the country, in fact you had been serving a sentence in Spain for an offence of sexual assault against an 11 year old. Within two weeks of coming back into this country you targeted your own 20 year old granddaughter, luring her to your home under false pretences, when you greeted her you squeezed her buttocks and tried to kiss her on the lips. You then sat next to her and indulged in an inappropriate, sexual conversation before touching her leg repeatedly, moving your hand up to the very top of her thigh before at the end of this offering her money. This was quite clearly pre-planned, [VDS], you invited her round on a false pretence and right from the moment she entered the house you started touching her inappropriately and sexually. This was as I have said [to counsel] within a fortnight of you moving back to the country. You protest that you are terrified of the idea of going to custody again having experienced it in Spain, well that terror did not last very long when you came and decided, made a positive decision, to target your granddaughter and offend against her. She was described as shaking from head to toe when she told her other grandmother as to what you had done and she describes in her Victim Personal Statement how she loved and trusted you but you abused that trust the very first time you were ever alone with her. She has suffered flashbacks and she has lost contact with your side of the family and will no doubt therefore be affected by what you did to her for a very long time. You are 77 years old, whilst you do not have any convictions in this country you were, as I have said, sentenced to three years’ imprisonment in 2018 in Spain for sexual assault of an 11 year old girl, you abused her after gaining the trust of her mother who was a neighbour. You denied that offence and contested a trial in Spain too. It is quite clear that given you continue to deny both that and this offence you deny what is plainly obvious to everybody else. You are a predatory sexual offender who targets young women and girls, builds up trust in relationships and then uses that trust to isolate them to satisfy your sexual desires to touch younger females. You are not a physically well man, you are clearly on a number of medications to treat your various ailments and I know that any custodial sentence would be very difficult for you, but this is a culpability A case so far as sentencing guidelines are concerned, due to the abuse of trust, and whilst there are no category 1 or 2 harm features of this case meaning it is a category 3 harm case, that means a starting point of six months and a bracket of a high community order up to a year. The situation however is seriously aggravated by your previous conviction by the effect on your victim, albeit of course it is not serious and significant psychological impact, the effect is serious upon her and the fact you wasted no time whatsoever in targeting, isolating and abusing your granddaughter on arriving in this country. They are all serious aggravating features of this case. I accept that you served the whole of the sentence in Spain but the fact that you entered this country and offending in such short order means that that term made by [counsel] or that point made by [counsel] about that sentence is irrelevant. You serve sentences according to the regime where you offend, and the fact you served the whole of that sentence is of no regard to this court. The fact is you came to this country and offended again as I say in very short order. [Counsel] submits that I should suspend the inevitable sentence that must follow in this case and I have carefully considered the imposition guidelines. Given your continued denials I consider that there is absolutely no prospect of rehabilitation in your case, you denied what you did in Spain, you have denied what you have done here, and you take absolutely no responsibility for your actions, and so there is not that feature which would urge suspension upon the court, nor is there any other feature which would suggest that suspension ought to be considered in this case. In my judgment the offence you have committed can only properly be met by an immediate custodial sentence, notwithstanding your age and your infirmity, and I would be failing in my public duty if I did anything other than meet this offence with an immediate custodial sentence. I keep the sentence as short as I can in the circumstances to bear in mind what little mitigation is available to you but bearing in mind all the mitigating and the aggravating features the least possible sentence is one of 12 months imprisonment.”

[7]VDS completed the custodial element of that sentence on 14 October 2024 and returned to live with AB.

[8]On 2 May 2024 the SSHD made the Stage 1 decision. The Stage 1 decision records the following in “Part 1 – Deportation decision”:

“On 15 April 2024 at Preston Crown Court, you were convicted of Sexual assault on a female – intentionally touch – no penetration – SOA 2003, for which you were sentenced to 1 years imprisonment. You fall within the definition of “foreign criminal” in section 32(1) because you are not a British or Irish citizen, and you were convicted in the UK of an offence for which you received a sentence of at least 12 months’ imprisonment. Under section 32(5) of the UK Borders Act 2007, the Secretary of State must make a deportation order in respect of a foreign criminal, unless one or more of the exceptions set out in section 33 of the same Act applies. You have not shown that any of the exceptions apply to you. The deportation of a foreign criminal is conducive to the public good. The public interest in your deportation is further strengthened because of your previous foreign conviction of 15 January 2018.”

[9]In “Part 2 – Considerations in your deportation decision” the following is said: “You have been convicted of a criminal offence as set out in Part 1 of this letter. The Secretary of State deems your deportation to be conducive to the public good under section 3(5)(a) of the Immigration Act 1971 and in accordance with section 32(5) of the UK Borders Act 2007 as set out in Part 1 of this letter. In this part you will find details of various additional considerations that were taken into account as part of this decision.“

[10]The Stage 1 decision went on to refer to VDS’s immigration history and explain the effect of deportation on his ILR and the possibility of him being detained pending his removal, as well as additional details about an appeal. It included a “One Stop Notice” inviting VDS to tell the SSHD of any reasons why he should be allowed to stay in the United Kingdom. VDS appealed to the First-tier Tribunal (‘FTT’) against the Stage 1 decision. He later made representations to the SSHD that his removal to Italy would be incompatible with Article 8, ECHR.

[11]The appeal against the Stage 1 decision was set down for hearing, but before that hearing took place, on 17 October 2024, the SSHD refused the human rights claim and issued a deportation order against VDS (‘the Stage 2 decision’). In the Stage 2 decision the SSHD said the following under the title “The Provision you are being deported under” at [23]:

“We wrote to you on 02 May 2024 and informed you that because of your criminal conviction in the UK, section 32(5) of the United Kingdom Borders Act 2007 places a duty on the Secretary of State to make a Deportation order against you unless you can demonstrate that one or more of the specified exceptions set out in section 33 of that Act applies to you. This is because you are a foreign criminal who has been sentenced to a period of imprisonment of at least 12 months and as such your deportation is conducive to the public good. In response to that decision, you submitted representation setting out why you should not be deported. Your representations have been considered below.”

[12]The Stage 2 decision goes on at [24]–[89] to consider the representations that had been made by VDS under the title “Consideration of your human rights claim.” Having set out the relevant provisions of the Immigration Rules, which reflect s.117C of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’) and summarised VDS’s representations, the SSHD states at [28]:

“your deportation is conducive to the public good and in the public interest because you have been convicted of an offence for which you have been sentenced to a period of imprisonment of less than four years but at least 12 months”

. The letter then proceeds to consider whether a s.117C Exception applies. Between [29] and [51] of the Stage 2 decision, consideration is given to the family life Exception before concluding that the Exception does not apply to VDS because the effect of his deportation would not be unduly harsh on AB. Between [52] and [60], consideration is given to the private life Exception. It was accepted that VDS has been lawfully resident in the United Kingdom for more than half his life [54], but not accepted that he is socially and culturally integrated in the United Kingdom [57] or that he would face very significant obstacles to integration [58]. On that basis the SSHD concluded that the private life Exception does not apply. Between [61] and [75] consideration is given to whether there are very compelling circumstances, over and above the Exceptions which outweigh the public interest in deportation. At [61] the SSHD states that the public interest is based on the offence committed on 21 August 2023 and the sentence that was imposed for that offence. The letter then quotes from the Judge’s sentencing remarks before stating the following at [63]–[65]: “You are a serial, predatory sex offender who has shown a blatant disregard for the laws of the UK and the impact of your offending on your victims. Your victims would doubtless have been traumatised by the events and may suffer long term psychological harm. Sexual offences are among the very worst kind of offences and the public rightly expects to be protected from those who perpetrate such appalling crimes. Your most recent offence of sexual assault against your own granddaughter demonstrates a pattern of predatory sexual offending, seeking vulnerable victims and forcing himself upon them. It is also extremely concerning that this offence was committed less than 2 weeks after you came back to the United Kingdom after serving just under 3 years in Spain for sexual activity with a child under 16 years of age. It is therefore considered you pose a high risk of re-offending.

[13]The Stage 2 decision goes on to consider the restraining order in place, VDS’ potential rehabilitation and his relationships with friends and family in the United Kingdom, before concluding that there are not very compelling circumstances that outweigh the public interest in VDS’s deportation. The final conclusion is recorded under the title “Decision”, that:

“it is not accepted that you fall within any of the exceptions to deportation at section 33 of the UK Borders Act 2007. Therefore section 32(5) of the same Act require the Secretary of State to make a Deportation Order against you.”

[14]VDS appealed against the stage 2 decision to the FTT.

FTT decision

[15]The Judge heard VDS’s appeals against both the Stage 1 and Stage 2 decisions together on 6 February 2025.

[16]The Judge records at [16] that at the beginning of the hearing the parties (who were both represented) agreed that the principal issues in dispute were(i) whether the Stage 1 decision was unlawful or breaches VDS’s rights under the Withdrawal Agreement between the United Kingdom and the EU (‘the WA’);

(ii) if not, whether either of the Exceptions to deportation in s.117C apply so that the Stage 2 decision was disproportionate;

(iii) if not, whether there are very compelling circumstances which outweigh the public interest in deportation and mean the Stage 2 decision was disproportionate. The Judge also records at [23] that the SSHD’s representative acknowledged that were he to find in VDS’s favour on issue (i) then both of his appeals would succeed.

[17]In relation to issue (i) the Judge found that Exception 7 to the automatic deportation provisions of the UK Borders Act 2007 (‘the 2007 Act’) Act did not apply to VDS and that the question of his deportation arose as a consequence of conduct that occurred after IP completion day. He set out these conclusions at [24] and [25] as follows:

“24. The crux of the Appellant’s argument is that the offence for which he was convicted included conduct that took place before the end of the transition period such that the exception set out in section 33(6B) of the 2007 Act applies. However, I find the wording of that exception does not assist him. It is clear that the exception only applies where the specific offence for which a foreign criminal is convicted consisted of or included conduct that took place before implementation period (IP) completion day, that being 31st December 2020 (or the ‘specified date’). The offence for which the Appellant was convicted in March 2024 took place in August 2023. Whilst his previous offending in Spain was an aggravating factor in considering the length of sentence to be imposed, the specific offence he committed whilst in this country did not consist of or include any conduct that took place before the ‘specified date’. Further, the Appellant’s conduct prior to the ‘specified date’ occurred in Spain and he was convicted in a Spanish Court. The automatic deportation provisions in section 32 of the 2007 Act only apply to those convicted of an offence in the United Kingdom by virtue of section 32(1)(b), though any overseas convictions are plainly of relevance when considering liability to deportation on conducive grounds under section 3(5) of the 1971 Act. 25. It seems to me there is nothing in the legislative framework to explicitly preclude the Respondent from pursuing deportation action based only on offending which took place after the ‘specified date’ where such conduct alone triggers the automatic deportation provisions, even if there are separate convictions relating to conduct which occurred before that date. In this case, the Appellant was convicted in this country and sentenced to a period of imprisonment of 12 months’ such that sections 32(1) and (2) of the 2007 Act apply to him. Further, it is of some relevance that the Appellant was allowed to re-enter the United Kingdom and was granted ILR under the EU Settlement Scheme despite his earlier more serious conviction. It seems to me sufficiently clear that the question of deportation arose as a consequence of conduct which took place in this country after the ‘specified date’ and over six years after his offending behaviour in Spain, which took place in January 2016 (see consolidated bundle, page [529]). These factors tend to support the Respondent’s position that domestic law applies.”

[18]Despite this, the Judge found that the SSHD “had in fact” relied upon VDS’s conduct before IP completion day when making her decision to deport because she had relied upon the 2016 offence committed in Spain. The Judge explained this conclusion at [27] on the basis that the SSHD referred to the 2016 offence in both the Stage 1 and Stage 2 decisions and at [28] on the basis that the sentencing judge increased the sentence imposed as a result of the 2016 offence. At [30] the Judge found that:

“whilst the threshold for deportation is technically met by virtue of the 12 months sentence imposed, there is a question as to whether the conduct which took place in August 2023 alone would have met the threshold given the length sentence imposed is inextricably linked to the Appellant’s earlier conviction because it was a serious aggravating factor”

[19]At [35]

the Judge concluded that:

“Whilst the Appellant does not fall within the scope of the exception set out in section 33(6B) of the 2007 Act, I consider that the Respondent has in fact relied upon conduct that occurred before the end of the transition period as part of her decision to deport but has failed to consider deportation under Regulation 27 of the EEA Regulations (as saved) in accordance with Chapter VI of Directive 2004/38/EC. I find that this amounts to a breach of the Appellant’s rights under Article 20(1) of the Withdrawal Agreement and that the decision is not in accordance with the law, with reference to section 3(5A) of the 1971 Act and section 2(1)(a) of the Citizens’ Rights Regulations.”

[20]The Judge therefore allowed VDS’s appeal against the Stage 1 decision. He concluded the decision breached the WA, and was not in accordance with the Immigration Act 1971 (‘the 1971 Act’). The Judge found that the SSHD justified deportation with reference to conduct that occurred both before and after 31 December 2020 (‘the IP completion date’) and therefore, that the WA required that deportation had to be considered by reference to the Citizenship Directive and the Immigration (EEA) Regulations 2016 (‘the 2016 Regulations’). We shall refer to this as the EU deportation regime. The Judge allowed VDS’s appeal against the Stage 2 decision, having concluded that interference with Article 8 would in those circumstances not be in accordance with the law.

Onward appeal to the Upper Tribunal (‘UT’)

[21]The SSHD was granted permission to appeal to this Tribunal by the same Judge who heard his appeal in the FTT, on three grounds: Ground 1: There was a failure to correctly apply the ‘automatic deportation’ provisions of the 2007 Act. Specifically and primarily, the Judge erred in law in: identifying any material reliance on pre-IP completion day conduct in the Stage 1 decision; drawing inferences on reliance for the purposes of the Stage 1 decision, from the Stage 2 decision section addressing the human rights claim; his analysis of the relevance of the sentencing remarks when addressing the issue of reliance for the purposes of Stage 1. Ground 2: Even if the EU deportation regime applied, the Judge erred by failing to address material aspects of it. Ground 3: The Judge failed to adequately address the appellant’s human rights claim.

[22]The SSHD’s appeal was opposed on behalf of VDS in a Rule 24 notice. This addresses each of the grounds of appeal with particular reference to the Judge correctly finding that the SSHD placed reliance on pre-IP completion day conduct.

ANONYMITY

[23]The victim of the offence referred to at [6] above, is entitled to anonymity by virtue of s.1 of the Sexual Offences (Amendment) Act 2004. To ensure those rights are not infringed, and bearing in mind the family relationship between VDS and the victim, VDS was anonymised before the FTT. We maintain that position in this Tribunal for the same reason and, in accordance with rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the victim of the sexual assault. In the particular circumstances of this case, that means referring to the respondent as VDS and his wife as AB. LEGAL FRAMEWORK The Immigration Act 1971

LEGAL FRAMEWORK

[24]By virtue of s.5(1) of the 1971 Act, the SSHD may make a deportation order against a person liable to deportation, which will have the effect of invalidating any leave to remain in the United Kingdom that has previously been given him, requiring him to leave the United Kingdom and prohibiting him from entering the United Kingdom while the order remains in force.

[25]S.3(5) identifies circumstances in which a person will be liable to deportation. It provides, so far as is relevant that:

“A person who is not a British citizen is liable to deportation from the United Kingdom if a) The Secretary of State deems his deportation to be conducive to the public good; or b) …” a) The Secretary of State deems his deportation to be conducive to the public good; or b) …”

[26]S.3(5A), inserted with effect from 31 January 2020 by section 10(2) of the European Union (Withdrawal Agreement) Act 2020, provides so far as is relevant that:

“The Secretary of State may not deem a relevant person’s deportation to be conducive to the public good under subsection (5) if the person’s deportation – (a) Would be in breach of the obligations of the United Kingdom under Article 20 of the EU withdrawal agreement…. Or (b) Would be in breach of those obligations if the provision in question mentioned in paragraph (a) applied in relation to the person.” (a) Would be in breach of the obligations of the United Kingdom under Article 20 of the EU withdrawal agreement…. Or (b) Would be in breach of those obligations if the provision in question mentioned in paragraph (a) applied in relation to the person.”

[27]A relevant person for the purpose of s.3(5A) is defined in s.3(10) to include a person like VDS who has leave to remain in the United Kingdom granted by virtue of the EUSS.

UK Borders Act 2007

[28]S.32 of the 2007 Act is entitled “Automatic deportation”. It provides so far as is relevant as follows:

“(1) In this section “foreign criminal” means a person – a) Who is not a British or an Irish citizen b) Who is convicted in the United Kingdom of an offence, and c) To whom Condition 1 or 2 applies (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months (3) … (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.

(a) he thinks that an exception under section 33 applies…”

[29]S.33 is entitled “Exceptions” and states at (1) that ss.32(4) and (5) above:

“(a) do not apply where an exception in this section applies (subject to subsection (7) below)…”

[30]Ss.33(2) to (6D) then set out a series of Exceptions. Exception 2, Exception 4, Exception 5 and Exception 6, set out in ss.(3), (5), (6) and (6A) are not relevant in this case and so are not repeated here. Exception 1 is identified in s.33(2) as follows:

“Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach – (a) a person’s Convention rights, or (b) the United Kingdom ’s obligations under the Refugee Convention” (a) a person’s Convention rights, or (b) the United Kingdom ’s obligations under the Refugee Convention”

[31]While the United Kingdom was part of the EU, s.33(4) identified an Exception 3 which applied where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the EU treaties. This reflected the distinct position of EU citizens who, unlike other foreign nationals, resided in the United Kingdom not as the result of leave granted to them by the Secretary of State but by virtue of rights accrued from the Citizenship Directive. Exception 3 was repealed by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020/1309, on IP completion day following the United Kingdom’s departure from the EU which, after a transition period brought the end of the right of free movement under the Citizenship Directive. Exception 3 was simultaneously replaced with a new Exception 7 which is set out in s.33(6B) as follows:

“Exception 7 is where – (a) the foreign criminal is a relevant person, and (b) The offence for which the foreign criminal was convicted as mentioned in section 32(1)(b) consisted of or included conduct that took place before IP completion day.” (a) the foreign criminal is a relevant person, and (b) The offence for which the foreign criminal was convicted as mentioned in section 32(1)(b) consisted of or included conduct that took place before IP completion day.”

[32]For the purpose of s.33(6B) a “relevant person” is defined in s.33(6C) to include someone such as VDS who is in the United Kingdom with leave to remain granted by virtue of the EUSS.

The Withdrawal Agreement

[33]As explained in Secretary of State for Work and Pensions v AT

[2024] 2 WLR 967

;

[2023] EWCA Civ 1307

at [20-62], EU law was, in the form of the WA, turned into international law and then through an Act of Parliament, the EU Withdrawal Act 2018 became domestic law.

[34]The purpose of the alterations to the 1971 Act and the 2007 Act highlighted above, was to reflect the terms of the United Kingdom's withdrawal from the EU, as agreed in the WA. Broadly, the terms of the WA protect the rights of EU citizens who, before the departure from the EU, enjoyed the right of residence in the United Kingdom by virtue of the Citizenship Directive, to enter and to continue to reside in the United Kingdom after departure. The terms of the WA also allowed the United Kingdom to require such EU citizens to apply for a new residence status that conferred their ongoing right to reside. The United Kingdom exercised that right by setting up the EUSS through which EU citizens could apply for limited leave to remain and ILR.

[35]In relation to restrictions of the rights of residence and entry in the United Kingdom, Article 20 of the WA provides, so far is it relevant, as follows:

“1. The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, 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 Directive 2004/38/EC. 2. The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, 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.”

[36]In Vargova (EU national: post 31 December 2020 offending: deportation)

[2024] UKUT 00336

a UT Presidential panel considered the terms of the WA and its impact on the deportation of EU nationals following the United Kingdom’s departure from the EU. Having analysed the relevant legal framework, the panel concluded at [63] that the WA established a “bright line” distinction to the deportation framework that applies to EU citizens exercising rights under the WA. This was based upon an interpretation of the WA, applying the appropriate Vienna Convention on the Law of Treaties principles – see Vargova at [57] and AT (supra) at [80].

[37]In summary, the panel concluded that Article 20(1) clearly creates a defined class of individuals entitled to retain the protections of the EU deportation regime. These are limited to those whose conduct occurred before IP completion day [61]. The relevant EU principles apply to this limited class. This is to be contrasted to those whose conduct occurs after IP completion day: the more onerous tests under domestic legislation such as the statutory code in s.117A-C of the 2002 Act apply. We shall refer to this as the domestic deportation regime.

EU deportation regime

[38]It is not necessary to delve into the detail of the EU deportation regime here because there is no dispute as to its content. The question that arises is whether it applies. Chapter VI of the Citizenship Directive identifies the circumstances in which an EU citizen’s freedom of movement and residence within the EU can be restricted. Article 27(1) of the Citizenship Directive states that residence can be restricted on grounds of public policy, public security or public health. Article 27(2) states that measures taken on grounds of public policy or public security shall comply with the principle of proportionality, be based exclusively on the personal conduct of the individual concerned and that the personal conduct of the individual concerned must represent a genuine present and sufficiently serious threat affecting one of the fundamental interests of society. Article 28 provides additional protection against expulsion for those who have a right of permanent residence in the host state so that an expulsion decision may not be taken for such a person except on serious grounds of public policy and public security. This goes on to state that an expulsion cannot be taken against a Union citizen who has resided in the host state for the previous ten years unless there are imperative grounds of public security. These provisions of the Citizenship Directive were transposed into United Kingdom domestic law by the 2016 Regulations.

Domestic deportation regime

[39]S.6 of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

Article 8(1) of the Convention

provides for the right to respect for a person’s private and family life, which Article 8(2) says must not be interfered with by a public authority:

“except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

[40]At [17] of Razgar

[2004] UKHL 27

Lord Bingham identified five questions to be asked where removal is resisted in reliance on

article 8 ECHR

“(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8 ? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”

[41]Part 5A of the 2002 Act (ss.117A-117D) provides the tribunal with a complete code and structure for answering the fifth question posed in Razgar (the public interest question). S.117C applies to foreign criminals and states that the deportation of foreign criminals is in the public interest subject to two prescribed Exceptions or where there are very compelling circumstances over and above those two Exceptions.

[42]It is not in dispute that the domestic deportation regime establishes legal tests that are generally much more onerous for a person to meet than the EU deportation regime.

Appeal rights

[43]Reg.6(1) of the Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020 (‘the 2020 Appeal Regulations’) provides that a person such as VDS, who has been granted leave to remain under the EUSS, may appeal against a decision to make a deportation order under s.5(1) of the 1971 Act. The grounds of appeal are identified in Reg.8 of the 2020 Appeal Regulations. The two specific grounds of appeal relevant to the instant case are:(i) the decision breaches any right the appellant has by virtue of the WA (Reg.8(2)(a)), and;

(ii) the decision is not in accordance with s.3(5) or (6) of the 1971 Act (Reg.8(3)(d)).

[44]The panel in Vargova drew attention to the limited scope of an appeal in relation to what is referred to as a Stage 1 decision at [81]. This is not a deportation order but a notice that the SSHD has made a deportation decision. Such a decision provides the person with a period to make objections to the making of the deportation order. The panel therefore reasoned that the Stage 1 decision is not one that restricts the person’s rights of residence, and as such Article 21 of the WA does not apply. The panel contrasted this at [82] with a Stage 2 decision.

[45]The panel observed at [87] that if no submissions are made, i.e. on human right grounds, the only basis of challenge is the lawfulness of the Stage 1 decision. If an appeal against a Stage 1 decision raises human rights issues not previously raised, the SSHD can consider the same with a view to issuing a Stage 2 decision which will have the effect of superseding the Stage 1 decision. The panel distinguished the different scope of appeals against the relevant decisions as follows:

“88. The question to be considered at an appeal against a Stage 1 decision is whether the appeal should be allowed by the tribunal on the basis that there was a breach of domestic law in the process of making the decision to make the order, where the nature of the breach will have been such as to render the decision unlawful i.e. the legal validity of the decision to deport. 89. If submissions have been made on human rights grounds, the Secretary of State must have specific regard to her obligations under Article 8 of the Convention, balancing the applicant’s ties to the United Kingdom and any difficulties he or she would face readjusting to life in their home country against the seriousness of their criminal offending, but that will form part of the Stage 2 consideration process.”

[46]We note for completeness that on 25 June 2025, after VDS’s appeal had been heard in the FTT, the 2020 Appeal Regulations were amended by the Immigration (Citizens Rights Appeals) (EU Exit) (Amendment) Regulations 2025, with the effect that from that date appeals against a decision to deport can only be brought after a decision has been taken to pursue deportation following consideration of representations i.e. a Stage 2 decision.

HEARING BEFORE THE UT

[47]In anticipation of this hearing, VDS served a response to the notice of appeal and the SSHD then served a reply to that response in accordance with the Procedure Rules. A consolidated bundle of evidence was agreed by the parties. Both parties submitted helpful skeleton arguments and, on the day of the hearing, an agreed bundle of authorities. The parties expanded on their written arguments during the hearing before us. We record our gratitude to the parties’ respective legal teams for their careful and comprehensive written and oral arguments.

[48]Neither party challenged the guidance in Vargova, and indeed both parties relied upon it as supporting their respective cases. We are aware that the Court of Appeal granted permission to appeal in Vargova and this is due to be heard on 19 November 2025. We understand that the focus of the appellant’s case in the Court of Appeal is not the “bright line” distinction, but the approach to the domestic deportation regime for those EU citizens to whom Article 20(2) of the WA applies, and in particular the role of EU principles of proportionality. The latter issue is not one that the parties were inviting us to address. Their focus was upon which side of the “bright line” distinction identified in Vargova, VDS fell. It was also common ground before us that the “bright line” distinction requires that a decision to deport relying upon conduct occurring before IP completion date must be made applying the EU deportation regime, but that a decision to deport in reliance on conduct occurring after IP completion day applies the domestic deportation regime.

[49]In addition, the parties did not challenge the description in Vargova of the process for making a deportation order which includes the Stage 1 decision (to deport or notice of liability to remove) and subsequently consideration of any human rights claim and whether to pursue deportation, in a Stage 2 decision.

[50]Mr Yetman focussed upon ground 1. He submitted that the operative parts of the Stage 1 decision plainly considered the 2023 conduct only and that the decision maker applied the 2007 Act and mandatory deportation requirements that had been triggered by the 12-month sentence. Mr Yetman submitted that the Judge reached the right conclusion applying those provisions at [24]-[25] of the decision and the matter should have ended there with the Stage 1 decision to deport being upheld. Mr Yetman argued that the Judge’s subsequent reasoning at [26]–[29] went behind the automatic deportation provisions and against the Judge’s own reasoning. It was submitted that on any reading, the Stage 1 decision did not consider pre-IP completion day conduct, and the Stage 2 decision was addressing the separate matter of VDS’s human rights claim. Mr Yetman submitted that the remarks of the sentencing judge could not be used to indicate that the SSHD considered pre-IP completion day conduct when making the decision to deport.

[51]On behalf of VDS, Ms Doerr maintained the submissions that had been accepted by the Judge. She submitted that the Judge was correct to find that the decision to deport VDS had in fact been made at least in part relying on VDS’s conduct in Spain in 2016. She relied primarily upon the Judge’s sentencing remarks in 2024 as showing that VDS would not have got a 12 month sentence without consideration of the 2016 offence. She described this as a ‘nexus case’ in that but for the pre-IP completion date offence, VDS would not have received the post-IP completion date sentence. Ms Doerr also relied “as a secondary matter” upon the SSHD’s reliance upon the 2016 offence in the Stage 1 and Stage 2 decisions. In these circumstances, Ms Doerr maintained that contrary to the Judge’s conclusion, Exception 7 to the automatic deportation provisions in the 2007 Act applied to VDS but that even if Exception 7 was not met, the provisions of the WA requiring pre-IP completion day conduct to be considered applying EU deportation regime should take precedence.

[52]Both parties agreed that if we accepted the SSHD’s submissions as to ground 1 i.e. that only post-IP completion day conduct was relied upon in the decision to deport and therefore the domestic and not the EU deportation regime applies, there was no need to address grounds 2 and 3. In those circumstances the appeal against the Stage 1 and Stage 2 decision should be allowed and, bearing in mind the absence of any factual findings as to VDS’s human rights claim, the appeal against the Stage 2 decision should be remitted to the First-tier Tribunal.

OVERARCHING ISSUE IN DISPUTE

[53]The central question for us to resolve in this appeal is whether the Judge erred in law in finding that the SSHD “in fact relied upon” and “justified deportation” with regard to conduct that occurred both before and after IP completion day, when making the Stage 1 decision – see [35]-[38] of the FTT decision. Ms Doerr on behalf of VDS, defends the reasoning of the Judge in support of her submission that he was correct to find the EU deportation regime applied. Mr Yetman submitted that the SSHD placed no reliance upon pre-IP completion day conduct and the Judge erred in law in finding otherwise. Mr Yetman therefore submitted that in the absence of reliance upon the pre-IP completion date conduct within the Stage 1 decision, the automatic deportation provisions applied and, in any event, VDS fell firmly within Article 20(2) of the WA; as such the EU deportation regime did not apply. Rather, VDS’s deportation appeal had to be determined in accordance with the domestic deportation regime. We therefore heard full submissions not only on the Judge’s approach to the overarching issue in dispute but also on which side of the “bright line” distinction VDS fell. ANALYSIS Stage 1 decision

ANALYSIS

[54]In our judgment, the material content of the Stage 1 decision, as set out at [8] and [9] above, demonstrates that the SSHD only placed material reliance upon the post-IP completion day offending. The SSHD refers to the 12-month sentence of imprisonment imposed for the 2023 offence, explains that this means VDS meets the definition of a foreign criminal in the 2007 Act, states that the SSHD must make a deportation order in respect of a foreign criminal unless an Exception applies and explains that VDS has not shown that an Exception applies to him. It is apparent from this that the SSHD concluded that the conduct on 21 August 2023 meets the threshold for deportation under the 2007 Act and has proceeded on that basis to make the decision (she was required by the 2007 Act to make) that VDS’s deportation is conducive to the public good.

[55]As the Judge identified, after explaining the decision to deport by reference to the 2023 offence and the automatic deportation provisions, the Stage 1 decision goes on to state “the public interest in your deportation is further strengthened because of your previous foreign conviction of 15 January 2018.” Ms Doerr submits that this indicates that the decision to deport was made at least in part by relying on VDS’s conduct in Spain in 2016. We prefer Mr Yetman’s submission that this sentence was not an operative part of the SSHD’s consideration when making the Stage 1 decision but instead was a superfluous comment, added after the operative decision had already been made and was not a material part of that decision.

[56]When considering the SSHD’s decision making process in this case it is helpful to take into account the SSHD’s guidance for decision makers considering deportation in the published Home Office guidance “Conducive Deportation” (‘the HO guidance’). The HO guidance identifies that all foreign nationals who receive a custodial sentence in the United Kingdom are referred by the prison service for deportation consideration. Page 20 of the guidance gives instructions on the approach to be taken. It instructs decision makers that having identified that a person has rights under the WA (a relevant person):

“you must establish when the relevant conduct was committed. For example, when the offence was committed which led to their convictions and subsequent referral for deportation consideration”

. The HO guidance goes on to give specific instructions for situations where conduct has occurred before and after IP completion day (at p21):

“First you must consider conduct committed after 11pm GMT on 31 December 2020 to ascertain whether this conduct in itself meets the threshold for deportation under the 2007 Act or under the 1971 Act, If so you can then proceed to make a decision on conducive grounds.”

[57]The HO guidance continues to give instructions for where the post-IP completion day conduct does not meet the threshold for deportation, instructing that pre-IP completion day conduct must be assessed in accordance with Reg.27 of the 2016 Regulations. The HO guidance notes that conduct that occurred before IP completion day may inform a decision based on conduct thereafter and that:

“If reaching a decision that the threshold for deportation under the 2007 Act or 1971 Act is met, you must ensure the decision is based on conduct after 11pm on 31 December 2020 and that the conduct after 11pm GMT on 31 December 2020 is sufficiently serious on its own to justify the decision.”

[58]The HO guidance is entirely consistent with the WA itself and the “bright line” distinction set out in Vargova. Ms Doerr did not submit otherwise and relied upon the HO guidance to support the submission that there is a question as to whether the August 2023 conduct alone would have met the threshold. We address that separate submission below.

[59]When the Stage 1 decision is read as a whole, it seems abundantly clear to us that the SSHD followed the HO guidance by first considering whether the post-IP completion date conduct met the threshold for deportation under the 2007 Act. Having established this, the SSHD considered whether the Exceptions apply and concluded they did not. This gives a clear indicator that to use the wording of Exception 7, the 2023 offence “did not consist of or include conduct that took place before IP completion day”. As the HO guidance identifies, once the threshold for deportation under the 2007 Act is met, the decision-maker should directly proceed to make a decision on conclusive grounds and there is no need to consider anything more. It is apparent from the structure of the letter that this is what happened here - the reference to the 2016 offence comes after the decision to deport has already been explained and made.

[60]Our interpretation of the Stage 1 decision is confirmed by the content of the Stage 2 decision under the heading “The provision you are being deported under” at [23], which refers to the Stage 1 decision in the terms we set out in full at [10] above, i.e. the provision the decision to deport was made under was the 2007 Act on the basis of the criminal conviction in the United Kingdom and the 12-month sentence that was imposed as a result combined with the absence of any Exceptions applying.

[61]We are satisfied that the Stage 1 decision correctly applied the HO guidance and more importantly the applicable legal framework. In summary, the SSHD considered the 2023 offence and reached the conclusion that this offence in itself meets the threshold for VDS’s deportation because it resulted in the imposition of a 12-month sentence of imprisonment, which in turn triggered the provisions in the 2007 Act. Those provisions include the statutorily mandated conclusion that his deportation is conducive to the public good and the requirement to make deportation order.

[62]We regard it as significant that the SSHD’s representative expressly clarified her position before the FTT as follows: “the domestic deportation regime applies because reliance is placed only on the most recent conviction” - see [15] of the decision (our emphasis). This is entirely consistent with the Stage 1 decision and the SSHD’s decision-making process. It is regrettable that the Judge was not assisted by the SSHD’s ambiguous response to directions requiring her to clarify whether she relied on the 2016 conduct when making the Stage 1 decision. The Judge records at [27] that the response to those directions included reference to the Stage 2 decision and that this undermined the SSHD’s position. However, the position seems to have been unambiguously clarified at the hearing.

[63]The Judge seems to have come to the same conclusion because he states at [29] that the SSHD’s representative “is quite right that the automatic deportation provisions were triggered by the Appellant’s conviction in March 2024.” The Judge also recognises at [30] that “the threshold for deportation is technically met by virtue of the 12 month sentence imposed”.

Exception 7

[64]Ms Doerr maintained before us the submission she made before the Judge - the mandatory requirements in s.32 of the 2007 Act did not apply to VDS because he benefits from Exception 7 in s.33(6B) of the 2007 Act. We reject that submission for the same reasons given by the Judge at [24] of his decision. The wording of Exception 7 clearly and unambiguously identifies that it only applies where the offence that triggers the mandatory requirements of s.32 “consisted of or included conduct that took place before IP completion day”. The offence that VDS committed and which led to the imposition of a 12-month sentence of imprisonment, was a sexual assault committed entirely on 21 August 2023, long after IP completion day. It did not, as the Judge correctly identified, consist of or include VDS’s conduct in 2016.

[65]We also reject the suggestion made by Ms Doerr that by restricting consideration to whether the “offence” consisted of or included pre-IP completion day conduct, Exception 7 is inconsistent with and more restrictive than, Article 20 of the WA which only refers to consideration of “conduct”. We agree with the panel in Vargova at [83] and [97(4)] that Exception 7 reflects the position set out in the WA.

[66]The reference to “offence” in Exception 7 is made in the particular statutory context i.e. where a sentence of 12 months imprisonment or more has been imposed as a result of a proven offence. In this context, the word “offence” has a specific meaning. Rule. 7.3 of the Criminal Procedure Rules requires an allegation of an offence to contain a statement of the offence that describes it in ordinary language and identifies any legislation that creates the offence. The allegation of an offence must contain “such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant” (our emphasis). In the criminal context therefore an offence is no more than conduct which has been particularised in ordinary language and by reference to the legislation that makes it an offence. A decision to deport made on the basis of a specific offence is consequently a decision made in reliance on the conduct that is particularised in that offence.

[67]On this basis we are satisfied that Exception 7 to the automatic deportation provisions of s.32 of the 2007 Act accurately reflects the wording of Article 20 of the WA. A decision to deport may be made applying the domestic deportation regime, where it is made in reliance on an offence wholly committed after IP completion day.

[68]We accept Mr Yenton’s submission that this analysis is sufficient without more to determine the lawfulness of the Stage 1 decision. The Stage 1 decision was made in reliance on the offence that led to VDS being sentenced to 12 months imprisonment. That offence was particularised as involving conduct that occurred on 21 August 2023 i.e. after IP completion day. As such, applying Article 20 of the WA and the “bright line” it established, deportation could be considered applying the domestic deportation regime. In the circumstances, the applicable statutory regime mandated the conclusion that deportation is conducive to the public good and required a deportation order to be made.

Further challenges to the Judge’s reasoning

[69]Despite his conclusion that the threshold for deportation was “technically met” as a result of the 12-month sentence imposed for the 2023 offence, the Judge still went on to conclude at [35] that the SSHD in fact relied upon pre-IP completion date conduct. Mr Yetman submitted that each of the reasons provided in support of this conclusion gives rise to an error of law. We have already addressed the Judge’s observations at [26] and [27] in so far as those relate to the Stage 1 decision. The Judge went on to explain why the reasoning in the Stage 2 decision and the sentencing remarks support the conclusion that reliance was placed on pre-IP completion date conduct. Ms Doerr maintained in her submissions before us the Judge was correct to do so and it was apparent from the sentencing remarks and the Stage 2 decision, that the offence committed in 2016 was relied upon by the SSHD when making the decision to deport. We now turn to consider those two matters.

The sentencing remarks

[70]At [28] the Judge accepted Ms Doerr’s submissions regarding the remarks of the sentencing judge to the effect that had it not been for the 2016 offence, VDS would have received a shorter sentence for the 2023 offence and the automatic deportation provisions in the 2007 Act would not have been triggered. In our judgment, the Judge erred in law in accepting this submission. It does not follow from the sentencing judge treating the 2016 offence as aggravating the seriousness of the 2023 offence, that the SSHD must have considered VDS’s 2016 conduct when making the Stage 1 decision to deport. This suggestion conflates two distinctly different decisions, made for different purposes, by different people, in different contexts.

[71]As already identified, a criminal offence involves particularised conduct. It is a fundamental principle of sentencing that a person can only be sentenced for the conduct that has been particularised in the charge or indictment before the court – the offence, and has been proven either by guilty plea or following a trial – see the judgment of Lord Justice Bingham in R v Canavan

[1998] 1 WLR 604

. That principle is reflected in the Sentencing Code which refers at s.65 of the Sentencing Act 2020 to the court’s duty when considering the seriousness of the “current offence” to treat as an aggravating factor each relevant “previous conviction” that it considers can reasonably be so treated. Whilst a previous conviction might aggravate the seriousness of an offence, the sentence is always imposed for the current offence i.e. the conduct that has been particularised in the charge or indictment.

[72]Here, the current offence sentenced was the sexual assault committed on 21 August 2023. In adhering to the guidance issued by the Sentencing Guidelines Council in respect of offences of sexual assault (guidance which the sentencing judge was obliged to consider by virtue of s.60 of the Sentencing Act 2020), the sentencing judge considered the harm caused by VDS’s conduct on 21 August 2023 and his culpability for that conduct. The sentencing judge determined that it was a ”category A” culpability case and a “category 3” harm case, meaning that the range of appropriate sentence was between a high community order and 12 months imprisonment. He then considered aggravating and mitigating features in accordance with the Sentencing Guidelines, including VDS’s previous conviction for the 2016 offence. Having done so the sentencing Judge concluded that: “In my judgment the offence that you have committed can only properly be met by an immediate custodial sentence, notwithstanding your age and your infirmity, and I would be failing in my public duty if I did anything other than meet this offence with an immediate custodial sentence. I keep the sentence as short as I can in the circumstances to bear in mind what little mitigation is available to you but bearing in mind all the mitigating and the aggravating features the least possible sentence is one of 12 months’ imprisonment.” (our emphasis).

[73]It is plain therefore that, as was his duty, the sentencing judge considered a range of factors, aggravating and mitigating, including the 2016 offence, in order to determine that the appropriate sentence for the 2023 offence was 12 months imprisonment. That sentence was not appealed and it stands as the legally determined appropriate punishment for VDS’s conduct on 21 August 2023. As a matter of law the 12-month sentence was imposed on VDS as a sanction for the specific conduct on 21 August 2023, which was particularised in the charge that the prosecution proved beyond all reasonable doubt and which the Judge was required to sentence.

[74]Unlike the sentencing judge, the SSHD did not consider culpability, harm, aggravating and mitigating features when deciding to make the stage 1 decision to deport VDS and she did not consider VDS’s conduct in 2016. Instead, the SSHD considered: the 12 month sentence that had been lawfully imposed on VDS; Parliament’s expressed conclusion as set out in s.32(5) of the 2007 Act that the deportation of foreign criminals sentenced to 12 months imprisonment is conducive to the public good; no Exceptions applied; and then made the Stage 1 decision. At no time in that process did the SSHD place reliance upon VDS’s 2016 conduct. The fact that the 2016 conduct was considered in a separate decision-making process by the sentencing Judge, cannot be transposed into the Stage 1 decision.

[75]We reject Ms Doerr’s submission that this is a “nexus case” in that the SSHD placed reliance on criminal conduct both before and after the IP completion date. In determining which side of the “bright line” distinction the conduct fell, the SSHD was obliged to apply the relevant legislative framework. We have explained above that this was done within the Stage 1 decision. In addition, at the hearing before the Judge, the SSHD made it clear she was only relying upon the 2023 offence. It follows that it cannot on any reasonable view be said that the 2023 offence relied upon, “consisted of or included conduct that took place before IP completion day” (see Exception 7) or that the SSHD relied upon “conduct [that] occurred before the end of the transition period” (see Article 20(1) of the WA). In these circumstances, it matters not that the more serious offending (which was perpetrated against a minor and attracted a 3-year sentence) took place before IP completion day.

[76]Drawing the threads together, where the SSHD makes a decision to deport a person as a result of the sentence imposed for a particular offence, the decision to deport is taken in reliance on the conduct that is particularised in the offence that was proven against the person. Consequently a decision to deport made in reliance on an offence that was committed after IP completion day applies the domestic deportation regime in accordance with Article 20(2) of the WA. This is the case even though the sentencing judge took into account that the seriousness of the offence was aggravated by offending that occurred before IP completion day.

The Stage 2 decision

[77]At [27] of the decision the Judge appears to accept the submission that the reasoning in the Stage 2 decision is relevant to determining whether the SSHD placed reliance upon the 2016 offence for the purposes of the stage 1 decision. Ms Doerr submitted that the Judge was correct to do so on the basis that the SSHD is not entitled to “cherry pick” the offences she relies upon to justify deportation. Mr Yetman pointed out that the Stage 2 decision addressed VDS’s human rights claim and had nothing to do with the Stage 1 decision.

[78]We have already identified the two stage process of decision-making that the SSHD follows when pursuing deportation, as summarised in Vargova (see above at [44-45]). The issue on an appeal against the Stage 1 decision is the legal validity of the decision, not its merits (see [88] of Vargova). The Stage 1 decision is in effect a gateway to the SSHD subsequently being able to pursue deportation.

[79]The Stage 2 decision by contrast, involves a consideration of the merits including consideration of any human rights claim made in response to the Stage 1 decision. VDS raised such a claim on 30 May 2024, submitting that he relies on Exception 1 in s.33 of the 2007 Act, as removal would breach his

Article 8 ECHR

rights. He did not in those representations raise Exception 7 in s.33 of the 2007 Act. The Stage 2 decision was therefore specifically addressing the claim that deportation would breach the ECHR and not responding to any complaint about the reason for deportation. We note that consideration of a person’s human rights claim will still be required where the decision to deport is made applying the EU deportation regime because the application of the 2016 Regulations is a legally distinct exercise from the assessment of a human rights claim – see [71] of AA (Poland) v SSHD

[2024] EWCA Civ 18

[80]A Stage 2 consideration of a human rights claim necessarily has regard to the entirety of the person’s private and family life established in the United Kingdom in order to determine the Article 8 grounds. The SSHD must not only consider whether the public interest considerations in s.117B of the 2002 Act, but whether the s.117C Exceptions apply and, in the alternative, whether there are very compelling circumstances over and above the Exceptions, for the purposes of s.117C(6). This necessarily means consideration of the circumstances both before and after IP completion day.

[81]Against this background, it is significant that the SSHD comments about the 2016 offence within the Stage 2 decision in the instant case are not made within the section entitled “The provision you are being deported under”, but instead are made in the “Consideration of your human rights claim” section. Reliance upon the 2016 offence are therefore reserved to the specific consideration of the human rights claim and not whether the threshold for deportation is met. The question for the Judge was whether the SSHD placed reliance upon pre-IP completion conduct when making the Stage 1 decision. The comments made by the SSHD responding to VDS’s human rights claim in the Stage 2 decision were not relevant to this question. We are satisfied that the Judge erred in law when at [26]–[28] of the decision he refers to comments the SSHD made in the Stage 2 decision, to support his overall conclusion that the SSHD relied upon VDS’s 2016 conduct in the Stage 1 decision.

[82]Contrary to Ms Doerr’s submissions and the Judge’s concern raised at [29] of the decision, this was not a case of the SSHD “cherry picking” the offences she relies upon to justify deportation. Instead, the SSHD was appropriately addressing her mind at different times to the different issues that arise at the different stages of the deportation process by reference to the relevant statutory framework that apply on each occasion. The issue of proportionality and the application of s.117C did not arise at the time of the Stage 1 decision, where the question the SSHD was legitimately considering was whether there was a lawful basis for restricting VDS’s right of residence in the United Kingdom as a result of his conduct on 21 August 2023. Article 8 did arise at the time of the Stage 2 decision, at which point the question the SSHD was considering was whether the strength of the claim VDS raised about his private and family life in response to the Stage 1 decision outweighed the public interest in his deportation, by reference to the statutory code.

[83]It is therefore always important to recall in cases such as this, where there is conduct spanning both before and after IP completion day, that a Stage 1 decision to deport applies different considerations to a subsequent Stage 2 decision to refuse a human rights claim. The SSHD is obliged to consider different matters when making the two decisions. The terms of the WA do not prevent the SSHD from only relying upon conduct occurring after IP completion day when making the Stage 1 decision, but considering conduct occurring both before and after IP completion day when making a Stage 2 decision addressing a human rights claim.

CONCLUSIONS

[84]The Judge therefore erred in law in determining that the SSHD relied upon pre-IP completion day conduct when making the Stage 1 decision. The Judge was correct to find that the offence committed by VDS on 21 August 2023 triggered the automatic deportation provisions of the 2007 Act and that VDS did not benefit from Exception 7 to those provisions. The 12-month sentence which led to the decision to deport was imposed for particularised conduct which occurred after IP completion day, on 21 August 2023. The SSHD was therefore entitled to make a decision to deport applying the domestic deportation regime.

[85]When the Stage 1 decision is read in context, no material reliance was placed on the 2016 offence. The SSHD’s representative made it clear to the Judge that reliance was only placed on the 2023 offence. The Judge was not entitled to use reasoning deployed for different purposes in the Stage 2 decision and as part of the sentencing process, to infer that reliance was placed on the 2016 offence when making the Stage 1 decision.

[86]The fact that the sentencing judge, applying the relevant legislation, found that earlier conduct aggravated the seriousness of the conduct on 21 August 2023, does not mean that the sentence was imposed for the earlier conduct. Neither do the Judge’s sentencing remarks mean that the SSHD placed reliance on the earlier conduct when making the Stage 1 decision. The SSHD was entitled to treat a sentence imposed for a particularised offence to be the sanction for the conduct that constitutes that particular offence.

[87]The Judge conflated the two stages of deportation. The SSHD is entitled to consider conduct in the wider consideration of a human rights claim for the purposes of the Stage 2 decision, which was not relied upon as part of the Stage 1 decision. The Stage 1 decision was not in breach of VDS’s rights under the WA and was in accordance with the domestic legislation. We therefore set aside the Judge’s decision in respect of VDS’s appeal against the Stage 1 decision and we remake that decision by dismissing his appeal.

[88]It follows that the Judge was wrong to conclude that any interference with Article 8 was not in accordance with the law, without applying the relevant domestic deportation regime. For all the reasons we have explained, interference with Article 8 would be in accordance with the law, in particular the 1971 Act in conjunction with the 2007 Act. We therefore set aside the Judge’s decision to allow VDS’s human rights appeal.

[89]It is in these circumstances not necessary to go on to consider grounds 2 and 3 of this appeal. However as ground 3 identifies, the substance of VDS’s human rights claim is yet to be considered and in particular there have been no findings of fact whatsoever concerning the nature and strength of family and private life or the matters relevant to s.117A-C of the 2002 Act. We agree with the parties that given the extent of fact finding required, the appropriate action in these circumstances applying Begum (remaking or remittal) Bangladesh

[2023] UKUT 00046 (IAC)

and paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the FTT and UT, is to remit VDS’s human rights appeal against the SSHD’s Stage 2 decision to a different judge of the FTT to be considered afresh.

Notice of Decision

[1]The decision of the FTT to allow VDS’s appeal against the decision to deport him contains an error of law and is set aside. We remake the decision and dismiss VDS’s appeal brought under the 2020 Appeals Regulations.

[2]The decision of the FTT to allow VDS’s human rights appeal contains an error of law and is set aside. We remit VDS’s human rights appeal to the FTT to be considered afresh. Deputy Chamber President Plimmer Judge of the Upper Tribunal Immigration and Asylum Chamber 9 October 2025