In Zambrano (C‑34/09, EU:C:2011:124) the CJEU caused a stir by insisting that national law was incapable of depriving EU citizens of the genuine enjoyment of the substance of the rights granted by Union citizenship. Thereafter, in a series of judgments, it seemed to have second thoughts about the generosity of the earlier approach. Indeed, the later decisions in McCarthy (C‑434/09, EU:C:2011:277), Dereci (C‑256/11, EU:C:2011:734), Iida (C‑40/11 EU:C:2012:691), Ymeraga (C‑87/12, EU:C:2013:291) and O and Others (C‑356/11 and C‑357/11, EU:C:2012:776) led us to wonder about the genuineness of the Zambrano decision itself. After yet another disappointing decision in NA (C‑115/15, EU:C:2016:487, see here), in this pair of cases – i.e. Rendón Marín (C‑165/14, EU:C:2016:675) and CS (C‑304/14, EU:C:2016:674) – the Grand Chamber took the opportunity to shed further light on the derivative right of residence under Article 20 TFEU in the home Member State. Rendón Marín, a Columbian national, has two minor children who were born in Malaga. His son is a Spanish national and his daughter is a Polish national and both children have always lived in Spain. CS, a Moroccan, is Abu Hamza’s daughter-in-law. She was convicted of smuggling, in the pocket of her jeans, a mobile phone SIM card when he was imprisoned. She became liable to automatic deportation but her son is British.
The Tribunal Supremo (Supreme Court, Spain) and the Upper Tribunal (Immigration and Asylum Chamber, UK) referred questions to the CJEU about the effect that a criminal record may have on the recognition of a right of residence under EU law. The court responded that the existence of a criminal record alone is not enough to expel from EU territory or refuse a residence permit to a third country national with sole care of a minor EU citizen. Emphasising the importance of proportionality, the court held that it is possible to limit the derived right of residence compatibly with EU law only in circumstances when exclusion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security. It stressed the core principle that the personal conduct of the person in question must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of the host Member State.
Provisions of Spanish law in the form of Basic Law 4/2000, Royal Decree 2393/2004 and Royal Decree 557/2011 were shaped to allow an application for a temporary residence permit on the basis of exceptional circumstances and family ties but only on the condition that the applicant did not have a criminal record in Spain or elsewhere within the meaning of Spanish criminal law.
Marín alleged in the Tribunal Supremo that the Audiencia Nacional (High Court) misrepresented the authorities of Zhu and Chen (C‑200/02, EU:C:2004:639) and Zambrano (C‑34/09, EU:C:2011:124) which warranted the grant of a residence permit. He argued Article 31(3) and (7) of Law 4/2000 had been violated. Therefore, the Tribunal Supremo was unsure about the possibility of operating an uncompromising rule precluding – without any possibility of derogation – a residence permit to a non-EU parent with a criminal record with sole care of his EU citizen child even if this would deprive the dependent child of the right to reside in the EU.
Moreover, as is perhaps better known, under the mechanics of UK Borders Act 2007 the home secretary is obliged to make a deportation order as regards any foreign criminal who has been convicted of an offence in the UK and sentenced to at least 12 months’ imprisonment (or has been imprisoned for any length of time linked to an offence specified under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002). Six exceptions exist against automatic deportation and include situations where deporting the foreign criminal violates ECHR rights, breaches the UK’s obligations under the Refugee Convention or breaches the EU Treaties and so forth. The CJEU said at para 44 of CS that the legislation creates a presumption that the foreign criminal must be expelled from the UK and establishes “a systematic and automatic link between the criminal conviction of the person concerned and the expulsion measure applicable to him”.
CS acquired indefinite leave to remain in the UK in 2005. Her British child was born in 2011, remained in the UK and did not exercise freedom of movement. Shortly after her conviction in 2012 she was informed of her liability to deportation. She claimed asylum. Her claim was refused but her appeal was successful because deporting her would violate the Refugee Convention, Articles 3 and 8 of the ECHR and the Treaties. The First-tier Tribunal found that Zambrano prohibited the constrictive expulsion of an EU citizen from EU territory even where a parent such as CS was a foreign criminal because the child’s rights under Article 20 TFEU needed to be preserved.
The finding was appealed to the Upper Tribunal on the basis that the First-tier decision fell into error about CS’s child’s rights under Article 20 TFEU and Zambrano and CS’s derived rights under regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006 which acknowledges the Zambrano judgment. The home office asserted that deporting CS to Morocco was not precluded under EU law even if this meant that her child would be deprived of the genuine enjoyment of the substance of the rights attaching to the status of an EU citizen. This was the main question posed to the CJEU. Additionally, in the event the home office was wrong, it was asked whether any circumstances existed where such an expulsion would be permitted under EU law and whether Articles 27 and 28 of the Directive inform the answer.
The Court of Justice
The court said in both judgments that in very specific situations third country nationals may be granted a right of residence where the EU citizen concerned has not made use of his freedom of movement and the secondary law on the right of residence of third-country nationals does not apply.
Revisiting the principles observable in its jurisprudence the CJEU held that a third country national foreign criminal with sole care of a minor EU citizen cannot automatically refused a residence permit or to be expelled from EU territory merely because of a criminal record. So as to be validly adopted, an expulsion action must be proportionate and the personal conduct of the non-EU national conduct must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of the host Member State. The court reiterated its rationale in Bouchereau (C-30/77, EU:C:1977:172) that the threat must be immediate which was incongruent with Rendón Marín’s case as his custodial sentence was suspended and was not enforced.
In both judgments, the Grand Chamber invoked Bouchereau and a string of cases – such as Orfanopoulos and Oliveri, (C‑482/01 and C‑493/01, EU:C:2004:262), Commission v Germany (C‑441/02, EU:C:2006:253) and Commission v Netherlands (C‑50/06, EU:C:2007:325) – to stress that to justify derogation from the right of residence of EU citizens and their family members, the Member States cannot without supervision from EU institutions unilaterally determine the scope of public policy and public security because these concepts are subject to strict interpretation.
In the context of the instant cases, the Directive applied to Marín and his Polish national daughter. But it did not apply to him and his Spanish national son’s circumstances or to CS and her son of British nationality as the two children have always resided in their home Member State. Since it only applies to EU citizens and their family members who move to or reside in a Member State other than their state of nationality, only Marín and his Polish daughter qualified for a right of residence under the Directive.
On the other hand, the TFEU confers the status of Union citizen on every person who is a national of a Member State and persons enjoying such status the right to move and reside freely within EU territory, made up of the Member States. Therefore, both Marín and CS’s sons – Spanish and British respectively – qualify for such a right because they are EU citizens. The court reiterated that national measures capable of depriving EU citizens of the genuine enjoyment of the rights granted by EU citizenship are precluded by the TFEU. Circumstances in the present cases where an EU citizen in the sole care of a third country national parent would be compelled to exit the EU meant that refusing or expelling the parent amounted to a denial/deprivation of the nature in contemplation.
Yet the Member States are not altogether ousted from justifying a derogation from citizenship rights under the Directive and TFEU and may do so for reasons of public policy or public security. The derogation must stem from an individual’s personal conduct and must involve an assessment of whether or not he or she presents a genuine, present and sufficiently serious threat affecting the society of the host Member State. Equally, as the court said at para 42 of CS, the derogation must abide by the CFR and the principle of proportionality which must entail analysis of the subject’s length of residence, age, state of health, family and economic situation, social and cultural integration, extent of his links with the country of origin and the degree of gravity of the offence.
Even though it was exceptionally possible to rely on the public policy and public security exceptions, in the absence of a detailed assessment of the danger he actually posed, Marín’s conviction in 2005 did not suffice as a reason for refusing a residence permit.
In respect of CS, it held that it is for the referring UK court to evaluate the extent to which she is a danger by weighing up the interests at stake, i.e. the principle of proportionality, the child’s best interests and the fundamental rights guaranteed by the court laid down in the CFR – especially, as highlighted in Tsakouridis (C‑145/09, EU:C:2010:708), the right to respect for private and family life under Article 7.
The CJEU reiterated the principle articulated by the Grand Chamber of the ECtHR in Jeunesse v Netherlands (2015) 60 EHRR 17, and pointed to the centrality of the child’s best interests when weighing up the interests involved specifically in relation to his age, situation in the Member State and the degree of his dependence on the parent.
The decision in Detiček (C‑403/09 PPU, EU:C:2009:810) was mentioned in both judgments as authority for the fact that Article 7 of the CFR is a provision which must be read in conjunction with the obligation to take into consideration the child’s best interests as recognised in Article 24(2). Detiček involved a parental dispute and concerned the interpretation of Article 20 of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
The CJEU held that a court of a Member State in which a child is present cannot provisionally grant custody of the child to one parent if a court of another Member State, which has jurisdiction as to the substance of the case, has already given custody to the other parent. Maintaining a personal relationship and direct contact, on a regular basis, with both parents, and respecting the right to do so is undeniably in the best interests of any child. This is a fundamental right of the child evinced in the CFR. Unilateral decision making by one parent and wrongful removal undermine maintaining contact with the other parent and depriving contact with both parents is justifiable but only if another interest of the child that is so important that it takes priority over the interest underlying that fundamental right.
Read side by side with the recent decision in NA, where an abused woman with young children was short changed EU law rights by the CJEU, the judgments in CS and Marín are highly suggestive of the fact that EU law awards greater rights to criminal (or “bad”) people and fails to recognise the same standards for weak and vulnerable (or “good”) people. With this moral and ethical – indeed philosophical – dilemma in mind it is difficult to see the logic in the CJEU’s pronouncements. What kind of institution is this?
It is possible to see the CJEU’s judgment in CS as “trashing” the automatic deportation regime. However, it is probably going to be restricted in its scope by the domestic courts and should be “milked” while the going is still good.