Court of Appeal hands down significant judgment in post-Withdrawal Agreement criminality cases

The Court of Appeal has handed down judgment in Molnar and Vargova v Secretary of State for the Home Department [2026] EWCA Civ 31, dismissing two joined appeals concerning the applicability of the principle of proportionality in deportation appeals in respect of EEA nationals who committed offences post-Implementation Period Completion Day ("IP Completion Day"). The appellants appealed against the Secretary of State's ‘stage 1’ decisions to make deportation orders (and in Mr Molnar’s case, refusal of his human rights claim) on the basis that the Secretary of State had not considered the proportionality of their removal before making the decisions, which, they submitted, was required by article 21 of the Withdrawal Agreement.

There were two issues before the Court of Appeal:

1. Whether the making of a 'stage 1' decision under section 32(5) of the UK Borders Act 2007 was a restriction on the right to reside within the meaning of article 21 of the Withdrawal Agreement;
2. Whether the Secretary of State, when taking deportation action based on offences committed after IP Completion Day, must consider the proportionality of deportation.

On the first issue, the Court of Appeal (Elisabeth Laing, Baker and Falk LJJ) agreed with the appellants and the interveners that stage 1 decisions were a relevant restriction for the purposes of Article 21 of the Withdrawal Agreement, having regard to the automatic liability provisions in section 32 of the 2007 Act and the Secretary of State's powers of detention.

On the second issue, the Court agreed with the Secretary of State that articles 20(1) and (2) of the Withdrawal Agreement drew a distinction between criminal conduct committed before and after IP Completion Day. Post-IP completion day, the Withdrawal Agreement afforded the UK legislative freedom to restrict rights of residence in accordance with national legislation, Chapter VI of the Citizens' Rights Directive only attaching to conduct committed before IP completion day. A proportionality assessment for deportation based on post-IP Completion Day criminal offending is therefore not required.

Julia Smyth KC, Natasha Jackson, Harriet Wakeman and Claudia Hyde represented the Secretary of State in both appeals, instructed by the Government Legal Department.

Tim Buley KC and Alex Shattock, instructed by Herbert Smith Freehills Kramer LLP, represented The AIRE Centre, which intervened in the Vargova appeal.