The Supreme Court has granted the appellants permission to appeal the Court of Appeal’s decision in Vargova and Molnar v Secretary of State for the Home Department [2026] EWCA Civ 31. Julian Stern and William Shelley of Turpin Miller are acting for the appellants.
The case will determine how to apply the Withdrawal Agreement to people with status under the EU Settlement Scheme who face deportation following criminal offences committed after 31 December 2020. Does national law preclude EU law protections having a role?
This article was written by Julian Stern and William Shelley from Turpin Miller for Free Movement. The full article can be accessed on the Free Movement website.
The Upper Tribunal (write-up here) initially held that while substantive EU rights are not imported into national law for post-Brexit conduct, some procedural protections still are. This included the right to be notified of a decision, to an effective remedy, and to a fair hearing, but not the EU principle of proportionality.
The Court of Appeal (write-up here) agreed that proportionality does not apply, but it did not go on to resolve the broader question of whether national law now applies exclusively.
The right of appeal
The decisions under appeal in these cases were ‘stage 1’ notices, not refusals of human rights claims. These attract a right of appeal under regulation 6 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, which allows a person with leave under the EU Settlement Scheme to appeal a decision to deport them.
On 25 June 2025, before the Court of Appeal hearing, the Home Secretary added regulation 6(1A), which defined a deportation decision as one made only after the person has been invited to make representations against deportation. So, not the first notice sent out. In practice, the Home Office now tends to attach the right of appeal to the refusal of the human rights claim itself (the ‘stage 2’ decision).
Anyone advising an EU national with status under the EU Settlement Scheme who has received a stage 2 decision should check they have been given, and have exercised, a right of appeal under regulation 6, whether granted at stage 1 or stage 2. The Court of Appeal held that a stage 1 decision does restrict a person’s residence rights under the Withdrawal Agreement, and so the appeal under regulation 6 should not be ignored.
If the Home Secretary has failed to consider important information already available to her (such as a trafficking decision or the correct position on the EU application) in issuing the decision it is possible to mount an effective challenge. It is vital to confirm, from the original indictment if possible, the dates of all offences relied on by the Home Secretary. This is an area prone to error. Sentences are not always passed chronologically so a later sentence could be for pre-31 December 2020 conduct. If the Home Secretary relies on such conduct, a person’s case must be considered under the public policy grounds set out in Chapter VI of the Citizens’ Rights Directive.
If a stage 2 decision, headed as a refusal of a human rights claim, also contains a right of appeal under regulation 6, this should be exercised, even if late, to ensure that the person has a remedy under the Withdrawal Agreement. At the very least this will confirm that the person is covered by the Withdrawal Agreement, however the protections come to be interpreted in practice. Losing, or not exercising, the right of appeal under the regulations risks undermining the person’s position if the human rights appeal is successful.
EU proportionality
The Court of Appeal had to grapple with what the correct reading of Articles 20 and 21 of the Withdrawal Agreement was. Article 20(2) allows residence to be restricted for post-Brexit conduct ‘in accordance with national legislation’, while Article 21 imports certain safeguards from the Citizens’ Rights Directive for decisions falling within the scope of the Withdrawal Agreement. The appellants argued that this meant following national legislation, but subject to an EU proportionality assessment.
The Court of Appeal disagreed. Mixing the two regimes risked inconsistent interpretations across member states. It also rejected the idea that proportionality counts as a ‘procedural safeguard’ capable of being imported under Article 21, as Article 21 does not confer an independent right to a proportionality assessment. The Supreme Court will have to look at how the safeguards in Article 21 should be applied.
Staying cases already in the tribunals
After the Court of Appeal’s judgment, the Upper Tribunal was reluctant to stay cases pending the outcome of the application to appeal to the Supreme Court. Now that permission has been granted, the tribunal appears more willing to stay cases where an appellant’s pre-Brexit residence, and the scope of any surviving EU law protections, form a substantial part of their case.
What difference might a positive outcome for the appellants make?
Some may be tempted to wonder what might change if the Supreme Court finds that decisions to deport EU nationals for post-Brexit conduct must comply with the EU principle of proportionality after all. The answer depends on whether the parties to the Withdrawal Agreement envisaged removing all consideration of a person’s historical integration in the UK under free movement law, and whether such integration is capable of reducing or outweighing the public interest in deportation.
The Supreme Court will now look at these arguments afresh in January 2027.
This article for Free Movement was co-authoried by Julian Stern and William Shelley of Turpin Miller, acting for the appellants.