BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]

United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2024004951 [2025] UKAITUR UI2024004951 (27 March 2025)
URL: https://www.bailii.org/uk/cases/UKAITUR/2025/UI2024004951.html
Cite as: [2025] UKAITUR UI2024004951

[New search] [Printable PDF version] [Help]


A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-004951

First-tier Tribunal No: EA/00735/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 27 th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE LANDES

DEPUTY UPPER TRIBUNAL JUDGE JOSHI

 

Between

 

JOSEPH SAMPSON

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: The appellant represented himself

For the Respondent: Ms Simbi (Senior Home Office Presenting Officer)

 

Heard at Birmingham Civil Justice Centre on 7 March 2025

DECISION AND REASONS

1.               These written reasons reflect the oral decision which was given to the appellant at the end of the hearing.

2.               The appellant, with the permission of the First-tier Tribunal, appeals against the decision of a judge of the First-tier Tribunal, ("the Judge"), who, in a decision promulgated on the 17 th of September 2024, dismissed the appellant's appeal against the respondent's decision dated the 3 rd of May 2023 to make a deportation decision ("Stage 1" decision).

3.               The appellant is a citizen of Italy born on the 1 st of April 1974. On the 11 th of April 2023, the appellant was convicted of offences against his former partner for which he was sentenced to 9 months imprisonment.

4.               It is not disputed that the offences occurred after the end of the transition period - 11pm on the 31 st of December 2020 (the "specified date"). In dismissing the appeal the Judge decided at §§36 to 43 that the decision to make a deportation decision did not breach the appellant's rights under the Withdrawal Agreement (from the European Union) (2019/C 384 I/01) (" WA"). The Judge decided that Article 20(2) of the WA provides that where conduct occurred after the end of the transition period - as in this appeal - then that may constitute grounds for restricting the right of residence by the host State in accordance with national legislation.

5.               The Judge was satisfied at §§38 to 42 that the procedural safeguards provided for in Article 20(3) and Article 21 of the WA were met through the domestic law provisions.

6.               The appellant had been living and working in the United Kingdom since 2013. The appellant's two adult daughters are also settled in the United Kingdom. The respondent made a Stage 2 decision refusing the appellant's human rights' claim on the 8 th of August 2024. The appellant has lodged a separate appeal against that decision; that appeal has not yet been heard.

The appellant's appeal

7.               The appellant put forward three challenges against the Judge's decision in his grounds of appeal:

i. Firstly, the appellant's rights guaranteed by Article 21 of the WA are "safeguards" and were wrongly restricted to "procedural safeguards" by the Judge.

ii. Secondly, it was argued that in dismissing the appeal the fact that the appellant had a right of appeal against the adverse decision on his human rights' claim, the Stage 2 decision, was immaterial. This was an appeal against a different decision and on different grounds.

iii. Thirdly, even if the Judge was right and Article 21 imported purely "procedural safeguards" into Article 20(2) of the WA then the Judge erred by not considering/making any findings on the effect of the application of SSHD v AT [2023] EWCA Civ 1307. It was argued that in this case the Court of Appeal ruled that where EU law is engaged by the WA, EU fundamental principles including proportionality are applicable. It was argued that in the appellant's case the EU law point of entry is the decision restricting the right to reside and any such decision must be proportionate.

8.               The First-tier Judge granting permission did not limit the scope of her grant. The reasons for her decision are set out at §2 of her permission grant:

"The grounds assert that the Judge erred in failing to consider binding authority of SSHD v AT [2023] EWCA Civ 1307, which she was referred to in submissions and the skeleton argument. The Judge has not addressed this argument and given the issue of "procedural safeguards", are not settled, it is arguable this is an error in law."

The Secretary of State's position

9.               The respondent provided a rule 24 response and argued that the Judge whilst not having the benefit of the decision in Vargova (EU national: post 31 December 2020 offending: deportation) [2024] UKUT 336 (IAC) which was promulgated after the Judge's decision came to the same conclusion. The respondent argued that Vargova had settled the issue determining that there is a "bright line" distinction to be drawn between the regimes that apply to Union citizens who exercise rights under the WA who commit offences prior to the end of the transition period and persons such as the Appellant who commit offences after this date.

10.           Where the offence is committed after 11pm on the 31 st of December 2020 then the United Kingdom's domestic law applies and Article 21 of the WA does not import into domestic law the substantive safeguards which are found in the Directive, such as the EU law concept of proportionality. The respondent recognised that whilst permission to appeal has been sought to challenge the decision in Vargova it remains good law. The respondent distinguished the decision in AT because it related to social security law.

The hearing before us

11.           The appellant attended the hearing in person and was not represented. He indicated that because he was working he no longer qualified for legal aid. We were conscious that the nature of the appellant's appeal related to a complex legal argument and because of this we discussed whether he would be seeking an adjournment. We spent time explaining to him the arguments put forward by both parties. He indicated that he wanted to proceed with the appeal hearing. Whilst he was not represented we were satisfied that the grounds were drafted by counsel who was fully aware of the issues in the appeal and that the arguments had been properly and clearly expressed. We decided it was in the interests of justice to hear the appeal.

12.           On behalf of the Secretary of State, Ms Simbi submitted that she relied on the rule 24 response. She submitted that there is a clear distinction between those who commit an offence before the specified date and those who commit an offence after. She submitted that Vargova has resolved the issue that the domestic provisions apply in the Appellant's case and they also provide the necessary safeguards required by the WA.

13.           She submitted that this appeal concerned a Stage 1 decision that the respondent was entitled to make because there was no breach of domestic law in the process of making the decision to make the deportation order.

Discussion and conclusions

14.           In the circumstances we are satisfied that the Judge made no material error of law.

15.           In the decision of Vargova the presidential panel determined that under Article 20 of the WA there is a "bright line" distinction to be drawn between cases where an EU citizen or their family members who exercise rights under the WA face deportation depending on whether the offence(s) occurred before or after the specified date. Relying on Article 20(2) of the WA the panel clearly set out that whether a person such as the appellant who committed an offence after the specified date is liable to deportation must be considered by reference to the United Kingdom's domestic law. This is at both the initial decision-making stage and in any subsequent appeal. Article 21 of the WA does not import into domestic law the substantive safeguards which are found in the Directive including the requirement to apply the EU law concept of proportionality. The "safeguards"' which are available to such individuals as a result of Article 21 of the WA are restricted to "procedural safeguards" only.

16.           We do find that the Judge erred in not expressly considering the submissions about AT. However, we find that this error was not material. The Court of Appeal in AT determined that EU citizens with pre-settled status and no other qualifying right to reside are entitled to be awarded Universal Credit where the denial of the benefit would risk them being unable to live in dignified conditions. It was found that the residence rights under Article 13 of the WA must be construed by reference to the Charter of Fundamental Rights of the European Union which continued to apply and that those rights are directly effective (see §113 in AT). We find that the rights contained within Article 13 are subject to the restrictions contained in Article 20(2) as set out above and that the decision in AT makes no material difference.

17.           We further find that the purpose of a Stage 1 decision is limited. At §§81 and 82 Vargova sets out that a Stage 1 deportation decision notice is not a deportation order but a notice advising a person that the respondent had made a deportation decision against them allowing them an opportunity to "raise objections to the making of a deportation order." It does not restrict the right of residence. The panel went on to find that "on a proper interpretation of Article 21 the safeguards in the Directive have no application at the making of a Stage 1 deportation decision or any appeal against the same."

18.           It is a Stage 2 decision and the notification of a deportation order "that will restrict the right of the person referred to in Article 10 and bring into play the provisions of Article 21 and the procedural safeguards set out in the Directive."

19.           Following that analysis, the question before us is whether the Judge made a material error of law in finding that under domestic law the Stage 1 decision to make a deportation notice was lawful. We find, adopting and applying the principles set out in Vargova (which was promulgated after the Judge's decision), that the Judge's decision does not contain a material error of law.

20.           We explained to Mr Sampson that we considered the judge's decision was right and that meant that the Stage 1 decision, the decision to make a deportation order against him, stood. However his appeal against the Stage 2 decision, the refusal of his human rights' claim, was still ongoing. If he was successful in that appeal, the deportation order would not be enforced. He should expect to be contacted in due course by the First-Tier Tribunal who would be progressing that appeal towards a hearing.

Notice of decision

The appellant's appeal against the Judge's decision fails and is dismissed. The Judge's decision stands.

 

 

M D JOSHI

 

Judge M D Joshi

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

20 March 2025


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/uk/cases/UKAITUR/2025/UI2024004951.html