Secretary of State for the Home Department v Katarina Vargova
[2024] UKUT 336 (IAC)
Secretary of State for the Home Department v Kingsley Manyo
28 July 2023
[2024] UKUT 362 (IAC)
Upper Tribunal
A man from Italy was in prison in the UK when Brexit happened. A court said he wasn't legally living here because he was in jail, so he doesn't get the same protections as others. The case will be heard again to decide if he should be sent back to Italy.
Key Facts
- •Mr. Kingsley Manyo, an Italian national, arrived in the UK on February 1, 2016.
- •He was convicted of robbery, possession of a bladed article, and possession of cannabis in October 2018 and sentenced to 3 years and 10 months imprisonment in July 2020.
- •He applied for the EU Settlement Scheme on September 7, 2019.
- •A deportation order was issued on January 27, 2022, under section 32(5) of the UK Borders Act 2007.
- •The First-tier Tribunal allowed his appeal on human rights grounds.
- •The Upper Tribunal considered whether the deportation decision should have been made under the EEA Regulations 2016 or domestic legislation.
Legal Principles
An EEA national not holding permanent residence and imprisoned on December 31, 2020, was not exercising Treaty Rights under Article 7 of Directive 2004/34/EC and therefore not lawfully resident under EEA Regulations 2016.
Directive 2004/34/EC, EEA Regulations 2016
Post-Brexit, deportation decisions for EEA nationals without the benefit of EEA Regulations 2016 grace period savings are assessed under the Immigration Act 1971, UK Borders Act 2007, and Immigration Rules.
Immigration Act 1971, UK Borders Act 2007, Immigration Rules
Article 20 of the Withdrawal Agreement mandates considering conduct before the transition period's end according to Chapter VI of Directive 2004/38/EC.
Withdrawal Agreement
Regulations 3 and 4 of the Citizens' Rights Regulations 2020 determine the application of EEA Regulations 2016 during the grace period and beyond, based on lawful residence immediately before IP completion day (December 31, 2020).
Citizens' Rights Regulations 2020
Imprisonment does not count towards lawful residence for acquiring permanent residence under EEA Regulations 2016.
Home Office Guidance, CJEU Case Law (Onuekwere)
Outcomes
The Upper Tribunal set aside the First-tier Tribunal's decision.
The First-tier Tribunal misdirected itself in law by concluding that Mr. Manyo was exercising Treaty Rights immediately before IP completion day. His imprisonment prevented this.
The case will be reheard in the Upper Tribunal to remake the deportation decision.
The original decision was based on a misinterpretation of the law regarding Mr. Manyo's residence status.
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