Court of Appeal: No Absolutism in Zambrano Principle

The Secretary of State for the Home Department v Robinson (Jamaica) [2018] EWCA Civ 85 (02 February 2018)

The government’s appeal in this case was stayed, prior to which the UT had allowed Robinson’s appeal against a FTT decision, pending the outcome in the cases of Rendón Marin (C-165/14, EU:C:2016:275) and CS (C-304/14, EU:C:2016:674) where it was held that the principle in Ruiz Zambrano (C-34/09, EU:C:2011:124) is not absolute and permits exceptions. A Jamaican national born in 1975, Cherrie Ann-Marie Robinson entered the UK in August 2002 and was granted leave to enter as a visitor for three weeks. Her leave was extended as a student. In February 2004 she applied for leave to remain as the spouse of Marlon MacPherson, who was present and settled in the UK, and was granted leave until March 2006. She applied for and was granted ILR in March 2006. Later that year she was convicted of supplying cocaine and received 30 months’ imprisonment. Subsequently, her deportation was sought and a deportation order was signed in November 2007. This situation resulted in statutory appeals and judicial review proceedings. Meanwhile, Robinson gave birth to her son D in December 2008. She also applied for leave to remain outside the Immigration Rules in 2012 and treating her application as one to revoke her deportation order, the decision-maker refused the application. Thereafter, FTT dismissed her appeal in December 2012. However, the UT subsequently allowed her appeal in August 2013.

The Home Office filed an appeal in October 2014 and Sales LJ granted a stay on the papers in January 2015. In the instant judgment, the Court of Appeal unanimously allowed the Home Office’s appeal and remitted the matter to the UT for redetermination on the merits because the UT had taken too absolutist a view of Zambrano and the errors associated with that approach were not sufficiently immaterial for the court to dismiss the appeal instead. The Court of Appeal also found serious flaws with the approach taken by McCloskey J in CS (Morocco) about the status of Bouchereau (30/77, EU:C:1977:172). Unlike McCloskey J, Singh LJ did not find that the historic decision’s burial rites had been performed and he convincingly held that Bouchereau remains binding law. The two grounds of appeal pursued were (i) the UT wrongly concluded that the principle established by the CJEU in Zambrano is absolute and prohibits the deportation of a third-country national even where he or she is guilty of serious criminal conduct, and (ii) the UT failed to consider and apply regulations 20 and 21A of the Immigration (European Economic Area) Regulations 2006 in concluding that the decision to remove Robinson was not in accordance with the law.

Upper Tribunal

UT Judges Jordan and Pitt mentioned the public interest in removing cocaine suppliers, when permissible, and highlighted the approach in OH (Serbia) [2008] EWCA Civ 694 where Wilson LJ used the phrase “society’s revulsion” to represent the public interest in deporting foreign criminals.

However, applying MA and SM (Zambrano: EU Children Outside EU) Iran [2013] UKUT 380, they determined that under the Zambrano doctrine is “not a principle of European human rights law operated on principles of proportionality” and therefore “the prohibition against removal is absolute and prevents removal, notwithstanding the seriousness of the offence.” Of course in Hesham Ali (Iraq) [2016] UKSC 60 (see here), Lord Wilson disowned the OH (Serbia) terminology because it is “too emotive a concept to figure in this analysis.”

The Court of Appeal 

Underhill, Lindblom and Singh LJJ allowed the appeal. Singh LJ found that four issues arose, namely (i) the possibility for present court perform the proportionality exercise or remittal of the case to the UT, (ii) the correct test to be applied in the light in Rendón Marin and CS, (iii) the current status and effect of the decision in Bouchereau, and (iv) the relevance, if any, of the Rehabilitation of Offenders Act 1974.

Robinson conceded that UT Judges Jordan and Pitt were wrong to conclude that the prohibition against removal is absolute. However, she argued that the limited exceptions to the Zambrano principle did not apply to the present case and the errors of law in this case by the UT were not material. She moreover submitted that any proportionality exercise needing to be performed can and should be conducted by the present court rather than remitting the case to the UT for that task to be performed.

Relying on IA (Somalia) [2007] EWCA Civ 323 and ML (Nigeria) [2013] EWCA Civ 844, the Home Office argued that the UT’s errors of law were serious and incapable of rectification without being remitted to the UT for reconsideration. Robinson stressed her criminality was dated, her offence had been committed over 11 years ago and she has been at liberty for more than eight years. She had not reoffended and there was no “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” as specified by article 27 of the directive. Overall, her deportation would not serve to protect the requirements of public policy or public security. It would be disproportionate under EU law to deport her now because of the best interests of her son D. The court was invited to rule on the infringements of EU law rather than remitting the case to the UT.

(i) Performance of Proportionality Exercise

In Re B (A Child) [2013] UKSC 33, Lord Neuberger pointed to the unnecessary expense, delay and pointlessness of remitting cases where a first instance court or tribunal has performed a proportionality exercise pursuant to the ECHR. His Lordship explained that it might be propitious for an appellate court to review the initial judgment where the decision was “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings”. On that basis, Robinson sought to resist the possibility of the case being remitted to the UT to be determined afresh.

However, Singh J held that the argument fell over on three points as applied to the present case. First of all, UT failed to perform the proportionality exercise at all. Lord Neuberger considered a situation where a first instance court performed the proportionality exercise but made an error of principle in doing so. Secondly, Lord Neuberger encouraged the appellate court to reconsider the issue for itself only “if it can properly do so”. If anything, remitting the present case was far from “pointless”. Thirdly, in the present case, the question of proportionality was best addressed only after full consideration is given to the issues of fact and, in particular, updated information placed before the UT.

(ii) Correct Test

Rendón Marin and CS (Morocco) require an assessment to be made taking into account the personal conduct of the non-EU sole carer concerned; the length and legality of the individual’s residence on the territory of the member state concerned; the nature and gravity of the offence committed; the extent to which the person concerned is currently a danger to society; the age of the child at issue and his state of health; and the individual’s economic and family situation. In conducting the assessment, the court must consider the fundamental rights at stake – especially the right to respect for private and family life – and the principle of proportionality must be observed. Equally, in weighing up the interests involved, the child’s best interests must be properly considered and attention must be given to the child’s age, situation in the member state concerned and the degree of dependence on the parent whose deportation is in contemplation.

AG Szpnar’s opinion in CS (Morocco) advised the CJEU that a member state may nonetheless adopt an expulsion measure if it is “based on an imperative reason relating to public security.” Singh LJ found that this reasoning had not found its way into the final judgment and AG Szpnar remained fixated with the language of article 28(3) of the directive which imposes a higher test than the test that the CJEU eventually adopted vis-à-vis article 20 and article 21 of the TFEU. His Lordship preferred the government’s submissions on the point. He attached no weight to Robinson’s counterpoint that both the opinion and the judgment use the phraseology of “exceptional circumstances”.

Singh LJ held that no additional requirement is imported for the state to satisfy by the phrase as it merely summarises the subsequent words about the expellability of the foreign national in question. Therefore, “exceptional circumstances” signifies “an exception to the general rule” that someone enjoying the fundamental rights attaching to the status of EU citizenship cannot be forced to leave the EU. Therefore, the phrase cannot be interpreted as imposing the additional hurdle that “exceptional circumstances” must also be shown for expulsion to be achieved.

(iii) Status of Bouchereau: Good Law?

The impact of past conduct alone and public revulsion on a deportation appeal of the present nature gave rise to debate over whether the decision in Bouchereau is still good law. Shedding further light on AG Warner’s opinion and the ECJ’s ruling, Singh LJ found it “important to recognise that” the court was:

71. … talking about was not a threat to ‘the public’ but a threat to ‘the requirements of public policy’. The latter is a broader concept. It is possible that the past conduct ‘alone’ may constitute a threat to the requirements of public policy.

AG Warner’s reference to “deep public revulsion” was helpful and appropriate. It represented the type of extreme case in which past conduct alone may be sufficient as constituting a present threat to the requirements of public policy. In Marchon [1993] Imm AR 384, the Court of Appeal applied Bouchereau but in Straszewski [2015] EWCA Civ 1245 it was said that there was some force in the submission that the decision in Marchon can no longer represent Community law. Reviewing the field, Moore-Bick LJ pointed out the centrality of free movement rights and observed that they only be interfered with where criminal behaviour represents a serious threat to some aspect of public policy or public security. Exceptional cases aside, the offender’s conduct and likelihood of re-offending are the only determinants and public revulsion and general considerations of deterrence normally play no part in the exercise. Thus, deporting EU nationals holding a permanent right of residence is significantly different from the deportation of foreign criminals.

Robinson argued that the same principles govern the deportation of a Zambrano parent. However Singh LJ deciphered from Straszewski that despite the criterion of exceptionality, in principle cases were nevertheless possible where “the Bouchereau reference to past conduct, and in particular public revulsion, may still be relevant.” Equally, Thomas LJ upheld the validity of the Bouchereau test in Kluxen [2010] EWCA Crim 1081 and he found that the test has survived the replacement of Directive 64/221 by Directive 2004/38.

The above situation threw up an important question, on which argument was not heard, about the extent to which decisions of the Criminal Division of the Court of Appeal bind the Civil Division. Singh LJ found it unnecessary to give a definitive answer and preferred to say only two things. First of all, in Hardie and Lane Ltd v Chilton & Others [1928] 2 KB 306, the Court of Appeal declined to follow R v Denyer [1926] 2 KB 258 which was wrongly decided by the Court of Criminal Appeal (created 1907, abolished 1966). The issue of such conflict had not arisen since the creation of a single Court of Appeal with two divisions. Secondly, irrespective of the general position, particular significance potentially has to be accorded to the fact that Bouchereau is a relevant ECJ decision by which domestic UK courts are bound within the meaning of section 3(1) of the European Communities Act 1972. Beyond those two observations, Singh LJ only said:

79. However, it is unnecessary to delve more deeply into this question relating to the doctrine of precedent because, in my view, what was said by Thomas LJ in Kluxen was and remains correct. Therefore, even if that decision were not strictly binding on the Civil Division, I would follow it.

80. Accordingly, I am of the view that the decision in Bouchereau continues to bind the courts of this country.

All this meant that McCloskey J and UT Judge O’Connor had gotten things badly wrong in para 108 of CS (Morocco) when they decided the matter subsequent to the delivery of the CJEU’s judgment and held that “the Bouchereau principle has not survived the advent of Article 20 TFEU and the Citizens’ Directive, either singly or in combination.” The two judges failed to refer to Kluxen and their approach was at variance with Thomas LJ’s treatment of the Bouchereau test. They also incorrectly held that Bouchereau has no application to the context of derivative rights under the Zambrano principle. Despite no direct reference to Bouchereau is found in CS (Morocco) the CJEU had not overruled it or departed from it. Singh LJ found no inconsistency between the two decisions. In fact, Bouchereau not only recognised a present threat to the requirements of public policy but it also acknowledged that in an extreme case, the threat concerned might be evidenced by past conduct which has caused deep public revulsion.

The present case was different from a case with very extreme facts; say for example where a person has committed grave sexual offences or violence against young children. Robinson’s criminality was not significant enough to engender public revulsion at a past offence alone. In Straszewski, the court spoke of “the most heinous of crimes” which indicated the type of offending the ECJ envisaged regarding the sufficiency of a past offence alone. Marchon involved a doctor who was convicted of an offence of conspiracy to import 4½ kg of heroin for which he was sentenced to 11 years’ imprisonment which Moore-Bick LJ in Straszewski found “especially horrifying” and “repugnant to the public”. Comparatively, Robinson only received 30 months’ imprisonment which is at the lower end of the spectrum for dealing in class A drugs.

(iv) Rehabilitation of Offenders Act 1974

The 1974 Act enables “a rehabilitated person” with a criminal conviction to withhold a conviction to a potential employer. However, section 56A of the UK Borders Act 2007 precludes the 1974 Act from applying to any proceedings in respect of a relevant immigration decision or otherwise for the purposes of, or in linkage with, any such decision.

Comment

As demonstrated by the recent case of Onuorah [2017] EWCA Civ 1757 (see here), Singh LJ is the new face of stringency in the Court of Appeal. The present judgment serves to further illustrate the point that Singh LJ applies a very high level of strictness in passing judgment. Indeed, his Lordship’s incisiveness surpasses the robustness evidenced in the analytical style espoused by his brother Sales LJ.

In Arranz [2017] UKUT 294 (IAC, see here), McCloskey J applied CS (Morroco) to an ETA terrorist’s deportation appeal to hold that the Bouchereau exception is no longer good law. The terms of the present judgment seem to suggest that the approach in Arranz is also fundamentally flawed and vitiated by legal errors because the UT failed to appreciate the present legal value of Bouchereau and therefore misarticulated the correct test for expulsion under EU law.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Children, Citizens Directive, CJEU, Court of Appeal, Deportation, European Union, Free Movement, Proportionality, Public Interest, Tribunals, UKSC and tagged , , , , , , , . Bookmark the permalink.

2 Responses to Court of Appeal: No Absolutism in Zambrano Principle

  1. Good Luck Dudes. This geezer is a tough nut to crack innit!

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