Withdrawal Agreement Article 20(2) disapplies CRD proportionality for post‑transition offending; “stage 1” automatic deportation notice is a residence-rights restriction

1. Introduction

Molnar v Secretary of State for the Home Department ([2026] EWCA Civ 31) concerns how far EU free-movement protections survive, via the UK–EU Withdrawal Agreement (“WA”), when an EU citizen with UK “settled status” (indefinite leave to remain under Appendix EU) commits serious crime after Implementation Period Completion Day (“the Day”).

The joined appeals were brought by Ms Vargova (Slovak national) and Mr Molnar (Czech national), each:

• within the WA personal scope (Article 10) and holding UK settled status/ILR;
• convicted of offences committed after the Day;
• sentenced to more than 12 months’ imprisonment and treated as “foreign criminals” under the UK Borders Act 2007 (automatic deportation regime).

The key questions were:

1. Restriction gateway: does the Secretary of State’s “stage 1” automatic-deportation notice (that section 32(5) applies and deportation is intended unless an exception applies) itself “restrict” WA residence rights, engaging WA safeguards?
2. Proportionality: for post-Day offending, must the Secretary of State (and/or the Tribunal on appeal) apply an EU-law proportionality assessment derived from the Citizens’ Rights Directive (Directive 2004/38, “CRD”), in particular Chapter VI (Articles 27–31)?

The Court of Appeal (Baker LJ giving the lead judgment, with Falk LJ and Baker LJ agreeing) held: (i) the stage 1 notice is a “restriction” (so WA is engaged), but (ii) there is no freestanding CRD-style proportionality requirement for post-Day criminality under WA Article 20(2).

2. Summary of the Judgment

2.1 Ground 1 (Ms Vargova only): “stage 1” notice is a restriction

The Upper Tribunal had treated “stage 1” notices (decisions 1 and 3) as mere notifications, not restrictions; on that view, the WA would only be engaged at “stage 2” (when a deportation order is actually made). The Court of Appeal rejected that approach: the notices inform the person that, by operation of the automatic deportation scheme, deportation will follow unless exceptions apply, and they expose the person to detention powers. They therefore “restrict” residence rights.

2.2 Ground 2: no CRD proportionality for post-Day offending

The appellants and interveners argued that although WA Article 20(2) allows post-Day “conduct” to be treated under national legislation, WA Article 21 still imports “safeguards” from CRD Chapter VI—especially Article 31(3)’s requirement that redress procedures ensure decisions are not disproportionate.

The Court of Appeal held:

• Article 20 is the key dividing line: Article 20(1) preserves full CRD Chapter VI protection for pre-Day conduct, but Article 20(2) deliberately shifts post-Day conduct to national legislation.
• Chapter VI is an “indivisible package”: it cannot coherently be “diced up” into (i) “grounds” that can be replaced by domestic law while (ii) “safeguards” such as proportionality are retained.
• Any Article 21 importation must not contradict Article 20(2): to the extent Article 21 brings in procedural elements, it cannot recreate CRD proportionality in a context where Chapter VI is displaced.
• CRD Article 31(3) does not create an independent proportionality right: it presupposes the Chapter VI framework (notably Article 28’s integration-based tiers), which does not apply to post-Day conduct under Article 20(2).

The appeals were therefore dismissed on the proportionality point; no reference to the CJEU was required.

3. Analysis

3.1 Precedents Cited

(a) R v Bouchereau ('Bouchereau') (Case 30/77) [1978] 1 QB 732

Role in the appeal: Central to Ground 1 (whether an earlier step in the deportation process can itself affect free-movement/residence rights).

In Bouchereau, the CJEU held that even a judicial recommendation for deportation—though not binding on the executive—could be a “measure” affecting free movement because it was a necessary step in the process and could justify detention.

Influence here: The Court of Appeal used Bouchereau a fortiori: under the UK’s automatic deportation scheme, the stage 1 notice informs the individual that deportation is the legal default and triggers exposure to detention powers. Therefore it is a “restriction” for WA purposes.

(b) Chenchooliah v Minister for Justice and Equality (Case C-94/18) [2020] 1 WLR 1801 ('Chenchooliah')

Role in the appeal: Relied on by appellants/interveners to characterise proportionality as a “procedural safeguard” that can apply even where substantive CRD expulsion grounds (Articles 27–28) do not.

Influence and limitation: The Court of Appeal treated Chenchooliah as context-specific:

• It concerned expulsion on grounds wholly unrelated to public policy/security/health, activating CRD Article 15 (decisions “on grounds other than” those in Chapter VI).
• The “by analogy” application of Articles 30 and 31 in Article 15 did not import Articles 27 and 28; it was an attenuated safeguard regime.
• By contrast, these cases concern post-Day criminal “conduct” governed by WA Article 20(2), which expressly assigns the matter to national legislation; Article 15 CRD is not the operative mechanism.

The Court therefore rejected the attempt to use Chenchooliah to reintroduce CRD proportionality into Article 20(2) cases.

(c) Metock v Minister for Justice, Equality and Law Reform (Case C-127/08) [2009] QB 318

Cited within Chenchooliah for the proposition that once a family member derives residence rights under the CRD, the host state may restrict those rights only in compliance with Articles 27 and 35. Its relevance was indirect: it formed part of the background to understanding why Chenchooliah treated Article 15 cases as distinct from Chapter VI public policy cases.

(d) R (Lumsdon) v Legal Services Board [2015] UKSC 41; [2016] AC 697 ('Lumsdon')

Role: Cited for the proposition that EU-law proportionality is context-dependent—not a free-floating, uniform test.

Influence: Supported the Secretary of State’s argument (accepted by the Court) that “CRD proportionality” is embedded in the detailed Chapter VI framework; if that framework is displaced by WA Article 20(2), one cannot simply extract a standalone proportionality obligation.

(e) Orfanopoulos v Land Baden-Würtemburg (C-482/01) [2005] 1 CMLR 18; Land Baden-Würtemburg v Tsakouridis (C-145/09) [2011] 2 CMLR 11; K v Staatssecretaris van Veligheid en Justitie (C-366/16) [2019] 1 WLR 1877

Role: Cited by the Secretary of State to reinforce that Chapter VI protections operate as a structured whole governing expulsion on public policy/security grounds.

Influence: These authorities helped justify the Court’s rejection of the appellants’ proposed “grounds vs safeguards” severability: the CRD’s expulsion regime is a package where the substantive thresholds, integration factors, and proportionality control operate together.

(f) Secretary of State for the Home Department v AA (Poland) [2024] EWCA Civ 18

Role: Important in the tribunal background: the First-tier Tribunal relied on it to reject the view that an Article 8 ECHR assessment automatically satisfies a WA/CRD proportionality requirement.

Influence at Court of Appeal level: Once the Court held there is no imported CRD proportionality requirement for Article 20(2) cases, the AA (Poland) point fell away as a driver of the result (though it remains relevant to the different question of how Article 8 operates in deportation appeals generally).

(g) NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662; [2017] 1 WLR 207

Role: Background domestic deportation law: explains the construction of Part 5A (especially section 117C) and the “very compelling circumstances” route for medium offenders.

Influence: It contextualised what “national legislation” means in practice under Article 20(2): a demanding statutory public interest framework (rather than CRD’s integration-based tiers).

(h) R (AA) v Secretary of State for the Home Department [2025] EWHC 3404 (Admin)

Role: Raised post-hearing in relation to whether similar “liability to removal” concepts affect jurisdiction/characterisation of decisions.

Influence: The Court distinguished it and confirmed jurisdiction: the legislative context (home detention curfew eligibility) differed materially, and the purpose of the 2020 Regulations is WA compliance via appeal rights.

(i) Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307; [2024] KB 633

Role: Cited in the Secretary of State’s fallback argument about the limited way Charter rights “attach” via WA implementation.

Influence: Reinforced the Court’s general approach: post-exit EU rights apply only to the extent the WA (via the 2018 Act) makes them applicable; courts should not presume broader EU law “carry-over”.

3.2 Legal Reasoning

(A) Ground 1: why the “stage 1” notice is a restriction

The Secretary of State argued automatic deportation operates in two stages: a stage 1 notification that section 32(5) applies, and a stage 2 decision actually making a deportation order (DO) once exceptions are considered.

The Court agreed stage 1 decisions are “in effect, no more than notifications”—but held that what matters is the content and legal effect of the notification:

• Automatic deportation under section 32(4)–(5) makes deportation the legal default for a “foreign criminal”.
• The notice tells the person that deportation is intended/inevitable unless they bring themselves within exceptions.
• The scheme exposes the person to detention powers while deportation is being pursued.

That combination amounts to a present restriction of residence rights. The Court’s reasoning mirrors Bouchereau’s functional approach: a measure need not be final to “affect” rights if it is a necessary and consequential step in a removal process.

(B) Ground 2: the WA’s “sharp distinction” between pre- and post-Day conduct

The Court’s decisive move was to treat WA Article 20 as the controlling provision for criminality:

• Article 20(1): pre-Day conduct “shall be considered in accordance with Chapter VI” (mandatory retention of the full CRD expulsion regime).
• Article 20(2): post-Day conduct “may constitute grounds for restricting” residence rights “in accordance with national legislation” (a deliberate shift away from Chapter VI).

The appellants’ attempt to reconcile Articles 20(2) and 21 by separating “grounds” from “safeguards” was rejected for two intertwined reasons:

1. Workability/legal certainty: the proposed severability approach produced disputed lists of which provisions—or even sentences—were “grounds” vs “safeguards”. The Court considered that inconsistent with the WA’s recitals emphasising “orderly withdrawal” and legal certainty for citizens and authorities.
2. Substantive structure: the Court accepted that CRD Chapter VI is an “intricate” and “indivisible package” of protections. The recurring “public policy/public security/public health” language is the gateway into that package; it is not a detachable module of “grounds” that can be swapped out while retaining proportionality as a standalone safeguard.

On Article 21 (“Safeguards and right of appeal”), the Court’s approach was explicitly hierarchical: Article 20 is lex specialis for “conduct” and cannot be neutralised by reading Article 21 as importing the substance of Chapter VI in Article 20(2) cases. Any safeguards brought in by Article 21 can apply only insofar as they do not contradict the national-legislation model chosen by Article 20(2).

(C) Why CRD Article 31(3) does not reintroduce proportionality

The appellants placed weight on the second sentence of CRD Article 31(3) (“They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28”).

The Court read Article 31(3) contextually:

• “They” refers to the redress procedures in the first sentence; Article 31(3) is about what a review mechanism must be able to do within the Chapter VI system.
• The express link to Article 28 (integration-based protection tiers) confirms the proportionality referenced is the Chapter VI proportionality framework—precisely what Article 20(2) removes for post-Day conduct.
• Therefore, Article 31(3) cannot be treated as a self-standing, exportable proportionality obligation once the underlying Chapter VI regime is displaced.

3.3 Impact

(A) Practical consequences for EU settled status holders convicted after the Day

The judgment establishes a clear operational rule: for post-Day criminal conduct, deportation decisions affecting WA-scope EU citizens with settled status are governed by national deportation legislation (including the automatic deportation regime and the domestic Article 8 framework), not by CRD Chapter VI proportionality constraints.

(B) Clarification of the appeal “gateway” decision

By holding the stage 1 notice is itself a “restriction”, the Court:

• confirms WA-based appeal rights can be triggered earlier in the automatic deportation process (even though the proportionality ground fails);
• recognises the legal reality that “automatic” deportation operates through consequential steps (including detention exposure) before the DO is made.

(C) Doctrinal significance: disciplined treaty interpretation post-exit

The decision signals a restrictive methodology: EU-law concepts apply in the UK only to the extent that the WA clearly preserves them, and courts will resist interpretations that generate “muddles” requiring repeated CJEU involvement—particularly where the WA’s design aims at legal certainty.

(D) Litigation posture going forward

For post-Day offending, appellants are likely to focus on:

• domestic exceptions and procedural fairness arguments;
• Article 8 ECHR (as structured by Part 5A and section 117C);
• any residual WA procedural requirements that do not contradict Article 20(2), rather than CRD proportionality.

4. Complex Concepts Simplified

• Withdrawal Agreement (WA): the UK–EU treaty governing separation, including “Citizens’ Rights” for people who exercised EU free movement before the end of transition.
• Implementation Period Completion Day (“the Day”): the point at which transition ended; the WA distinguishes conduct before vs after this date.
• Appendix EU / settled status / ILR: UK immigration status granted under domestic rules to qualifying EU citizens; it is not itself “EU law”, but interacts with WA protections.
• Automatic deportation (UK Borders Act 2007, s.32): for “foreign criminals” (typically 12+ months’ imprisonment), the Secretary of State must make a deportation order unless an exception applies (notably human rights).
• Deportation order (DO): an order requiring a person to leave and prohibiting re-entry; it invalidates existing leave.
• “Restriction” of residence rights: not limited to the final DO; can include earlier measures/decisions that materially affect the right to remain (here, the stage 1 notice).
• CRD Chapter VI: the EU directive’s special expulsion regime requiring (among other things) proportionality, individual assessment, and increasing protection with integration/length of residence (Article 28 tiers).
• Lex specialis: a legal interpretation principle: the more specific rule (here WA Article 20 on “conduct”) governs over a more general one (Article 21 on “safeguards”).
• Article 8 ECHR & Part 5A (ss.117A–117D): the structured domestic test for whether deportation disproportionately interferes with private/family life; Parliament has weighted the public interest heavily in favour of deporting foreign criminals.

5. Conclusion

Molnar provides two key clarifications in the post-Brexit deportation landscape:

1. A “stage 1” automatic-deportation notice is a restriction on WA residence rights, engaging the WA framework at that point in the process.
2. For criminal conduct after the end of transition, WA Article 20(2) places deportation on a national legislation footing and does not preserve CRD Chapter VI proportionality (including Article 31(3)) as a standalone requirement.

The broader significance is interpretive as much as substantive: where the WA draws a bright temporal line, the Court will enforce it, resisting attempts to re-import EU-law protection by severing and re-labelling parts of the CRD framework.