The legal landscape for European Union (EU) citizens residing in the UK shifted fundamentally on 31 December 2020. The "bright line" of the implementation period (IP) completion date has since dictated whether an individual is protected by the more lenient EU deportation regime or subject to the rigorous domestic standards of the UK. A recent decision by the Upper Tribunal (UT) involving an elderly Italian national who had resided in the country for over half a century has clarified exactly how this boundary is policed. This ruling serves as a vital reminder that, even for those with decades of residency and status under the EU Settlement Scheme (EUSS), a single criminal act committed in the post-Brexit era can strip away historic protections and trigger mandatory deportation under British law.
Background:
VDS is an Italian citizen who had first entered the UK in 1969. Over the course of five decades, he established deep roots in the country, fathering children and maintaining a long-term marriage. However, in 2016, he committed a sexual assault against a minor while in Gran Canaria. He was convicted in Spain in 2018 and sentenced to three years of imprisonment. After serving his time and being expelled from Spain to Italy, he applied for, and was granted, Indefinite Leave to Remain (ILR) under the EUSS, returning to the UK on 10 August 2023.
The situation escalated soon after his return. Only eleven days after re-entering the UK, he had committed a further sexual assault against his own granddaughter. In April 2024, he was sentenced to twelve months in prison for this further offence. The sentencing judge explicitly noted that, while the twelve-month term was punishment for the 2023 assault, the severity of the sentence was aggravated by his previous 2016 conviction in Spain. Consequently, the Secretary of State issued a deportation decision under the domestic "automatic deportation" framework. VDS challenged this, arguing that because the 2016 conduct (which happened before the Brexit transition period had ended) was used to aggravate his current sentence, his case should be judged under the more protective EU deportation standards rather than the harsher UK domestic rules.
Decision:
The UT overturned an initial ruling that had favoured the individual by strictly separating sentencing and immigration law. The Tribunal focused on Section 32 of the UK Borders Act 2007, which mandates that the Secretary of State must issue a deportation order for any "foreign criminal" sentenced to at least twelve months of imprisonment. Crucially, the Tribunal ruled that the "offence" triggering this mandate was the sexual assault committed on August 21, 2023. As this misconduct occurred entirely after December 31, 2020, it fell squarely under the auspices of the domestic deportation regime.
The Tribunal rejected the argument that the sentencing judge’s reference to the 2016 Spanish conviction created a "nexus" that pulled the case back into EU law. The judges clarified that, while a criminal court may consider a defendant’s past to determine the length of a new sentence, the Home Office is only considering the length of sentence as a legal trigger for deportation. Since the 2023 offence did not "consist of or include" conduct from before the Brexit deadline, Exception 7 under Section 33 of the 2007 Act did not apply. Further, the Tribunal ruled that the Home Office was entitled to use a two-stage process. In Stage 1, the legal basis for deportation was sought based solely on his post-Brexit conduct, although this did not preclude being allowed to mention the subject’s wider criminal history during the Stage 2 human rights assessment without "infecting" the case with EU law protections.
Implications:
For EU nationals living in the UK, the most critical takeaway is that your "pre-Brexit" status does not provide a permanent shield against domestic deportation laws. If you are convicted of an offence that was committed after 31 December 2020, and that offence results in a custodial sentence of twelve months or longer, then the Home Office will apply the domestic "foreign criminal" framework under Section 117C of the Nationality, Immigration and Asylum Act (NIAA) 2002. This framework is significantly more onerous than the old EU rules. Under the domestic regime, the public interest in deportation is considered so high that it can only be outweighed by showing that removal would be "unduly harsh" to a partner or child, or if there are "very compelling circumstances" that go beyond the standard hardships of relocation.
This decision also clarifies that the Home Office can "cherry-pick" which offences it uses to start the deportation process. By focusing only on crimes committed after the Brexit transition, the government can bypass the high thresholds of "serious" or "imperative" grounds of public security that used to protect long-term residents. Even if a judge mentions your history to increase your current sentence, it is the date of occurrence of the new crime that determines which law applies to your residency. For anyone facing criminal proceedings, it is now more important than ever to understand that the consequences on your immigration status of a twelve-month sentence are effectively automatic and irreversible under the current "bright line" interpretation of the Withdrawal Agreement.