Molnar v Secretary of State for the Home Department

Factual and Procedural Background

These consolidated appeals concern the interpretation of the Withdrawal Agreement ('the WA') in relation to two EU nationals who hold indefinite leave to remain under Appendix EU of the Immigration Rules and who were convicted of offences committed after Implementation Period Completion Day ('the Day'). Appellant (first) and Appellant 2 (second) each received custodial sentences exceeding 12 months. The Defendant issued notifications (referred to in the opinion as decision 1 and decision 3) stating that each was a 'foreign criminal' and that the Defendant was obliged under section 32(5) of the UK Borders Act 2007 to make a deportation order unless an exception applied. Each notification generated an appeal right under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020. The First-tier Tribunal (Immigration and Asylum Chamber) allowed the appeals, holding that the Defendant had not considered proportionality. The Defendant appealed to the Upper Tribunal, which allowed the Defendant's appeals and held (1) that the stage-1 notifications were not 'restrictions' on residence rights and (2) that article 21 of the WA does not import an EU proportionality safeguard requiring an individualised proportionality assessment. The Appellants obtained permission to appeal to this court.

Legal Issues Presented

1. Whether the Defendant's stage‑1 notifications (decision 1 and decision 3) amounted to a "restriction" on the Appellants' rights of residence within the meaning of the WA and associated EU-derived protections.
2. Whether, when deportation is sought for offences committed after the Day, the Defendant (and/or the First-tier Tribunal on appeal) must apply an EU-law proportionality assessment derived from Chapter VI of Directive 2004/38 (the Citizens' Rights Directive, 'the CRD') as incorporated by article 21 of the WA, or whether national legislation governs.

Arguments of the Parties

Appellants' Arguments

• Article 21 of the WA imports procedural and substantive safeguards from Chapter VI of the CRD (in particular article 31(3) and article 28(1)) so that any decision restricting residence rights must be proportionate on the facts of the case.
• Decision 1 and decision 3 are restrictions triggering WA protections (and the right of appeal under the 2020 Regulations reflects that assumption).
• The distinction in article 20 between conduct before and after the Day should not permit the Defendant to avoid the EU proportionality framework for post‑Day conduct; article 20.2 allows national rules only as to what counts as 'conduct' but not as to the procedural/substantive safeguards required when restricting rights.
• If ambiguity remains, a preliminary reference to the Court of Justice is warranted.

Appellant 2's Arguments

• Aligned with Appellant's submissions: proportionality is a safeguard limiting whether grounds justify restriction and thus applies even to post‑Day conduct under article 21.
• Accepted that a reference could be made but did not press for one as necessary.

Defendant's Arguments

• Article 20.1 and 20.2 of the WA draw a clear distinction: conduct before the Day is governed 'in accordance with Chapter VI' of the CRD; conduct after the Day 'may constitute grounds for restricting the right of residence ... in accordance with national legislation'. Article 20 is lex specialis for conduct.
• Chapter VI of the CRD is an indivisible package; procedural safeguards in article 31 presuppose the substantive Chapter VI regime. Article 21 cannot be read to override article 20.2 and import the full Chapter VI protections for post‑Day conduct.
• The proportionality principle in EU law is context‑dependent and cannot be read as a free‑standing requirement detached from the CRD structure.
• No reference to the Court of Justice is necessary because the WA and CRD, properly read together, are clear.

Interveners' Arguments (Entity A and Entity B)

• Entity B (AIRE Centre) argued that article 31(3) (and related safeguards) imported by article 21 require an effective proportionality assessment and that the WA cannot be used to dilute CRD safeguards for persons within article 10 scope.
• Entity A (Independent Monitoring Authority) emphasised that article 21 is mandatory and that procedural safeguards in Chapter VI apply; some domestic provisions (Exception 7 of section 33) are inconsistent with the WA and must be disapplied.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Appellant (Case 30/77) [1978] 1 QB 732	Whether a judicial recommendation for deportation can be a "measure" affecting free movement and therefore subject to Directive limits.	The court relied on the reasoning in this authority to conclude that notifications which make a person immediately liable to deportation (and detention) can amount to a restriction on residence rights; applied to reject the UT's view that stage‑1 notifications were not restrictions.
Appellant v Minister for Justice and Equality (Case C-94/18) [2020] 1 WLR 1801	Application by analogy of article 15 and the limited scope of Chapter VI safeguards where expulsion is based on grounds other than public policy/security/health.	The court considered and distinguished this authority: it was held not to assist the Appellants because article 15 (and its analogy to articles 30/31) applied in different factual circumstances and did not import the full Chapter VI protections to cases outside its scope.
Secretary of State for the Home Department v Appellant (Poland) [2024] EWCA Civ 18	Used by the First-tier Tribunal to support the proposition that an article 8 assessment under domestic Part 5A does not satisfy any separate proportionality requirement imported by the WA/CRD.	The court noted the First-tier Tribunal's reliance on this decision but proceeded to analyse the WA and CRD; the current court did not adopt the F‑tT's full approach on ground 2.
R (Appellant) v Secretary of State for the Home Department [2025] EWHC 3404 (Admin)	Interpretation of 'liable to removal' in a different statutory context (home detention curfew eligibility) and whether that reasoning translates to WA/2020 Regulations issues.	The court considered written submissions on this authority and accepted the parties' submissions that it did not apply to these appeals and did not remove this court's jurisdiction to decide the appeals.
NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662; [2017] 1 WLR 207	Construction of section 117C of the 2002 Act and the interpretation that medium offenders could avoid deportation in certain circumstances.	The judgment summarises this authority in explaining Part 5A's operation; it was treated as background authority on domestic Article 8 public interest considerations.
R (Appellant) v Legal Services Board [2015] UKSC 41; [2016] AC 697 (Lumsdon)	The principle that proportionality is context‑dependent in UK/EU law.	The court accepted that proportionality's content depends on context and referred to that principle when analysing the competing constructions of the WA/CRD.
Appellant v Minister for Justice, Equality and Law Reform (Case C-127/08) [2009] QB 318 (Metock)	Principles on derived rights of residence and beneficiary status.	Quoted within the Chenchooliah analysis; the court relied on the Court of Justice's reasoning in that chain of authorities when distinguishing Chenchooliah from the present appeals.
Appellant v Land Baden‑Würtemburg (C-482/01) [2005] 1 CMLR 18; Land Baden‑Würtemburg v Appellant (C-145/09) [2011] 2 CMLR 11; Appellant v Staatssecretaris van Veligheid en Justitie (C-366/16) [2019] 1 WLR 1877	Authorities invoked to support the indivisibility of Chapter VI protections and the inseparability of 'grounds' and protective requirements.	The Defendant relied on these authorities to support the view that Chapter VI is an indivisible package; the court accepted that Chapter VI functions as an integrated scheme relevant to its interpretation of articles 20 and 21 of the WA.
Secretary of State for Work and Pensions v Appellant [2023] EWCA Civ 1307; [2024] KB 633 (AT)	Limits on the applicability of the Charter of Fundamental Rights in domestic law post‑WA.	The Defendant relied on this authority as a fallback to argue that Charter protections apply only insofar as rights are brought into domestic law by the WA; the court recorded and considered that submission in addressing scope of Charter rights.

Court's Reasoning and Analysis

The court addressed the two main grounds in sequence.

Ground 1 — Whether stage‑1 notifications are 'restrictions'

• The court analysed the statutory scheme of the UK Borders Act 2007 and the Immigration Act 1971 and concluded that once a person qualifies as a 'foreign criminal' the law makes them liable to deportation without any further discretionary decision by the Defendant; section 32 creates an automatic legal consequence and section 36 creates detention powers once section 32(5) may apply.
• The court applied the reasoning of the Court of Justice in the authority on judicial recommendations (Bouchereau) to the present statutory framework: where a domestic step has the legal effect of making a person liable to deportation and permits detention and other measures, that step amounts to a restriction affecting rights of residence.
• Accordingly the UT was in error to hold that the stage‑1 notifications (decision 1 and decision 3) were not restrictions for the purposes of the WA and its incorporated protections; the content of the notifications (their legal effect) is decisive.
• The court considered (and rejected for these appeals) the relevance of a separate High Court decision on a different statutory scheme (R (Appellant) v Secretary of State [2025] EWHC 3404) and concluded it did not affect jurisdiction in these appeals.

Ground 2 — Whether article 21 imports an independent proportionality test for post‑Day conduct

• The court began from the premise that EU law ceased to apply save to the extent preserved by the WA and that articles 20 and 21 must be read together.
• Article 20.1 makes Chapter VI applicable to conduct before the Day; article 20.2 expressly permits conduct after the Day to be treated as grounds for restricting residence in accordance with national legislation. Article 21 states that the safeguards set out in article 15 and Chapter VI apply in respect of any decision restricting residence rights.
• The court rejected the Appellants' division of Chapter VI into discrete 'grounds' and separate 'safeguards' such that article 20.2 would allow national law to define grounds but article 21 would import the CRD's proportionality safeguards in full. The court held Chapter VI to be an integrated package; procedural safeguards in article 31 presuppose the substantive Chapter VI regime.
• The court concluded that article 21 incorporates the procedural safeguards of articles 30 and 31 of the CRD into WA cases so far as they are consistent with article 20.2. Article 31(3)'s requirement that redress procedures ensure that the decision is not disproportionate is to be read contextually: it requires proportionate review where Chapter VI (or an analogous substantive framework) applies, but it does not create a freestanding EU proportionality requirement applicable to post‑Day conduct regardless of article 20.2's allocation to national law.
• The court emphasised principles of legal certainty and orderly withdrawal, observing that permitting the Appellants' proposed dissection of Chapter VI would create incoherence and practical difficulties contrary to the WA's intent.
• On that basis the court dismissed ground 2: article 20.2 permits post‑Day conduct to be dealt with under national law subject to procedural safeguards imported by article 21 only to the extent consistent with article 20.2; it does not import an independent EU proportionality test that overrides article 20.2.

The court further held that, given the clarity of its interpretation, no reference to the Court of Justice was necessary.

Holding and Implications

Allowed (Ground 1 for Appellant)

The court concluded that the stage‑1 notifications (decision 1 and decision 3) were restrictions on the Appellants' residence rights for the purposes of the WA; the Upper Tribunal was therefore wrong to hold otherwise.

Dismissed (Ground 2 for both Appellants)

The court dismissed the appeals on ground 2: article 20.2 allows conduct after the Day to be treated as grounds for restricting residence under national legislation and article 21 imports procedural safeguards (articles 30 and 31) only to the extent consistent with article 20.2; it does not impose a freestanding EU proportionality obligation that supersedes article 20.2. The practical consequence is that post‑Day deportation decisions are governed primarily by national legislation, subject to the WA's procedural safeguards as so limited. No reference to the Court of Justice was made and the court did not purport to establish a new, broader EU law proportionality requirement beyond what the WA preserves.