Key Facts
- •Katarina Vargova, a Slovakian citizen, was convicted on 27 September 2022 for possession of a Class A drug with intent to supply.
- •She was sentenced to 2 years and 1 month imprisonment.
- •A Stage 1 deportation decision was issued on 12 November 2022.
- •Ms Vargova appealed the Stage 1 decision, arguing it was disproportionate.
- •The First-tier Tribunal (FTT) allowed Ms Vargova's appeal, finding the deportation decision disproportionate under EU law.
- •The Secretary of State appealed the FTT's decision to the Upper Tribunal (UT).
Legal Principles
A ‘bright line’ distinction exists between pre- and post-transition period offenses for EU citizens regarding deportation.
Article 20 of the Withdrawal Agreement
Pre-transition period offenses are considered under Chapter VI of Directive 2004/38/EC.
Article 20(1) of the Withdrawal Agreement
Post-transition period offenses are judged according to UK domestic law; EU law proportionality does not apply.
Article 20(2) of the Withdrawal Agreement
Article 21 of the Withdrawal Agreement provides procedural, not substantive, safeguards for post-transition period offenses.
Article 21 of the Withdrawal Agreement
A Stage 1 decision is not a decision restricting residence rights; only the lawfulness of the decision-making process is considered on appeal.
Regulation 6 and 8 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020
Proportionality assessments under Article 31(3) of Directive 2004/38/EC do not apply to post-transition period offenses.
Article 31(3) of Directive 2004/38/EC
Outcomes
The Upper Tribunal set aside the First-tier Tribunal's decision.
The FTT judge erred in law by applying EU law proportionality principles to Ms Vargova's case, which involved a post-transition period offense. The application of EU law was incorrect under the Withdrawal Agreement.
The appeal was remitted to the First-tier Tribunal to be heard alongside Ms Vargova's pending Stage 2 appeal.
This ensures all matters are considered together for efficiency and fairness.