Deporting EU Nationals: What the Molnar Case Changes

A recent Court of Appeal judgment, Molnar v Secretary of State for the Home Department [2026] EWCA Civ 31 has significantly changed how EU nationals living in the UK can challenge deportation decisions.

As part of our work supporting civil society partners and organisations, Seraphus wants to make this complex area of law and its impact understandable to the sector and those working with EU citizens. In this article we will explain the judgement by the court, why it matters for advisers to EU citizens, and what legal protections remain.

UK law creates a duty to deport a foreign national who receives a prison sentence (including a suspended sentence) of 12 months or more.

The Home Office also has a discretionary power to deport in other circumstances, including where:

• a person receives a suspended sentence of six months or more, or
• the Home Office considers the offence to have caused “serious harm.”

The “serious harm” category is particularly significant because it is not defined in legislation. Instead, the Home Office determines on a case-by-case basis whether an offence meets that threshold. This means deportation action can be pursued even where the sentence itself is relatively short or suspended.

EU nationals living in the UK under the EU Settlement Scheme benefit from rights preserved by the EU–UK Withdrawal Agreement.

Until the Molnar judgment, those rights included an EU proportionality assessment when deportation was considered.

A proportionality assessment asks whether deportation is a fair and reasonable response in the individual circumstances. The focus is not on whether the offence occurred, but on whether removal from the UK is justified.

Relevant factors typically include:

• length of residence in the UK
• level of integration
• family ties and caring responsibilities
• age and health
• seriousness of the offence
• risk of reoffending

For long-term residents, this could be a strong safeguard because the more established someone’s life in the UK, the harder it is to justify deportation.

In Molnar v Secretary of State for the Home Department, two EU nationals with Withdrawal Agreement rights received deportation decisions for offences committed after 31 December 2020, the end of the Brexit transition period. Both had received prison sentences of more than 12 months.

They argued they were still entitled to a Withdrawal Agreement proportionality assessment, even though the offending occurred after the transition period.

The Court of Appeal rejected that argument.

The court held that for conduct occurring after 31 December 2020, the Withdrawal Agreement allows the UK to apply domestic deportation law without applying the EU proportionality test.

In practice, this means the Home Office only needs to demonstrate that the domestic legal threshold for deportation is met.

Some procedural safeguards remain; individuals must still receive written notice of the decision and have a right of appeal. However, it is clear from this judgement that the EU proportionality framework no longer applies to post-2020 offending.

Despite the clarity of the ruling on proportionality, several issues remain open.

The court did not consider relevant interpretative guidance issued by the European Commission on the Withdrawal Agreement. That guidance suggests that procedural safeguards should continue to apply when rights are restricted, even where national law is used.

Because this argument was not raised in the case, it remains a potential line of argument in future litigation.

The court also hinted at a broader question but did not decide it: whether any part of the EU law framework applies to post-2020 conduct at all, including procedural protections preserved by the Upper Tribunal.

As the Home Office did not challenge that aspect of the earlier decision, the Court of Appeal could not rule on it. The issue may return to the courts.

The right to respect private and family life under Article 8 of the European Convention on Human Rights remains available in deportation appeal.

Article 8 involves a general balancing exercise between the public interest in deportation and the individual’s personal circumstances. It can still provide meaningful protection, and meritorious arguments should still be submitted, but it is less structured than the EU proportionality test that previously applied.

The practical effect of the Molnar ruling can be seen in the case of Maria, a Dutch national aged 68 who has lived in the UK for nearly 50 years.

Maria arrived in the UK in 1976 and was granted settled status under the EU Settlement Scheme in 2022. She has not lived in the Netherlands since the 1970s.

In October 2024 she received a four-month suspended sentence for allowing premises to be used as a brothel. No victim was identified and she did not serve time in custody.

Her sentence falls below the normal statutory thresholds for deportation. Nevertheless, the Home Office has pursued deportation on the basis that the offence caused “serious harm.”

Her lawyer, Naga Kandiah of MTC Solicitors, argues that deportation would be disproportionate given her circumstances. Maria has lived in the UK for nearly five decades and has no meaningful support network in the Netherlands.

Because the offence occurred in 2024, the Molnar ruling means the Home Office does not need to carry out a proportionality assessment. It only needs to meet the domestic “serious harm” threshold.

Maria’s only remaining route of challenge is through Article 8 ECHR.

Her case illustrates the gap created by the Molnar judgment. Previously, decision-makers would have had to weigh her 50 years of residence, personal circumstances and lack of ties to the Netherlands as part of a proportionality assessment. That structured safeguard is no longer available for post-2020 offences.

For practitioners advising EU nationals with Withdrawal Agreement rights:

• Offences before 31 December 2020
  The EU proportionality framework still applies.
• Offences after 31 December 2020
  Domestic UK deportation law applies and the EU proportionality test is not required.
• Article 8 ECHR
  This remains the main legal protection in deportation appeals.
• Withdrawal Agreement arguments
  Points based on European Commission guidance have not yet been tested in the Court of Appeal and may still be worth preserving.
• Future appeals
  As Molnar may ultimately reach the Supreme Court, proportionality arguments should continue to be raised where appropriate.

Seraphus, in its role as special adviser to the EU delegation to the UK, is keen to hear about cases where the ruling in the Molnar case may be applied. If you are advising a client affected by this decision, please get in touch with us by email to discuss their options.