No further “exceptional circumstances” test for Zambrano carers in deportation cases

Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53 (16 December 2020) 

This appeal raised the issue whether a third-country national (TCN) otherwise benefiting from the derivative right to reside within EU territory pursuant to the principle in Ruiz Zambrano v Office national de l’emploi  (Case C-34/09) EU:C:2011:124 enjoys enhanced protection against deportation, with the result that she/he can be deported in “exceptional circumstances” only. The Supreme Court unanimously held that the phrase “exceptional circumstances” does not import a further hurdle before a Zambrano carer can be deported from European Union (EU) territory. Under the Zambrano doctrine, and the substance of rights test, a TCN parent of a EU citizen child resident in EU territory who was dependent on the TCN parent is entitled to a right of residence if expulsion of the TCN parent would require the child to leave EU territory, consequently depriving the child of the genuine enjoyment of the substance of the child’s EU citizenship rights. The principle extends to dependants who are not children and it applies even though the EU citizen has not exercised their right of free movement. The TCN’s right of residence is a derivative right derived from the dependent EU citizen and it flows from Article 20 of the  Treaty on the Functioning of the European Union (TFEU) and was expressed without reservation in Zambrano so as to be thought to prevent expulsion of the TCN parent in all circumstances. Ms Robinson was a Jamaican national. 

She was convicted of supplying a Class A drug (cocaine) in the UK in 2006. The SSHD wanted to deport her. During the course of her lengthy appeal proceedings she had a son who is a UK citizen, and for whom she provided primary care. The First-tier Tribunal (FTT) dismissed Ms Robinson’s appeal against deportation and the Upper Tribunal (UT) decided that there were errors of law in the FTT’s decision, set it aside and remade it, allowing her appeal on the basis that the Zambrano right of residence was unqualified, so that there was an absolute prohibition preventing deportation of the TCN parent without any consideration of proportionality even if the TCN had committed serious crimes. The SSHD appealed to the Court of Appeal against the UT’s determination and proceedings were stayed to await the judgments in CS v SSHD (Case C-304/14) EU:C:2016:674, [2017] QB 558 and Rendón Marín v Administración del Estado (Case C-165/14) EU:C:2016:675, [2017] QB 495 which were given on 13 September 2016. The CJEU decided that there was a limitation on the Zambrano derivative right of residence, so that it was not absolute. This led to a narrowing of the issues and it was accepted that the UT had erred in law in that it had wrongly concluded that protection against removal was absolute and there was no need to consider proportionality if it came to the conclusion that the deportation of a TCN parent would require a child who was an EU citizen to depart from EU territory with the person being deported.

CS and Marín

In CS the CJEU said “article 20 TFEU does not affect the possibility of member states relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security.” The CJEU also said:

however, in exceptional circumstances a member state may adopt an expulsion measure provided that it is founded on the personal conduct of that TCN which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that member state, and that it is based on consideration of the various interests involved, matters which are for the national court to determine.

After the Court of Appeal gave its judgment in February 2018, on 8 May 2018 the CJEU delivered judgment in KA v Belgische Staat (Case C-82/16) EU:C:2018:308; [2018] 3 CMLR 28 (KA) which also addressed the test that should be applied as an exception to the Zambrano principle. Hence, three decisions of the CJEU’s Grand Chamber addressed the sole issue in the present appeal. 

Court of Appeal 

In SSHD v Robinson [2018] EWCA Civ 85, the Court of Appeal remitted the matter to the UT so as to carry out the proportionality exercise required by the decisions of the CJEU in CS and Marín. Singh LJ stated that “exceptional circumstances” simply means that it is an exception to the general rule, which is that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the EU. It does not however mean that, where the criteria set out in the proviso are satisfied, there is an additional hurdle that there must also be exceptional circumstances. Proceedings entered the Supreme Court on the ground whether the Court of Appeal (Underhill, Lindblom and Singh LJJ) was wrong to conclude that there was no need for “exceptional circumstances” to be established before a person relying on Zambrano could be deported.

The Supreme Court 

Lord Stephens – with whom Lady Black, Lord Lloyd-Jones, Lord Sales, Lord Burrows all agreed – dismissed the appeal. The court recalled that a Zambrano carer’s residence right therefore derives from the rights of the dependent EU citizen. It flows from article 20 of the TFEU which establishes EU citizenship. The CJEU has recognised the significance of EU citizenship, while confirming that it is subject to limitations.

The Supreme Court unanimously held that the term “exceptional circumstances” does not import an additional hurdle before a Zambrano carer can be deported from the territory of the EU. The case was remitted to the UT for redetermination on that basis. The court held that the Zambrano principle applies in very specific situations where, if the TCN were not given a right to reside in the EU, the dependent EU citizen would be forced in practice to leave the territory of the EU and in line with the judgments in Zambrano, Chavez-Vilchez v Raad van bestuur van de Sociale verzekeringsbank (Case C-133/15) EU:C:2017:354; [2018] QB 103 and KA the EU citizen would then be deprived of the genuine enjoyment of the substance of the rights conferred by EU citizenship. 

Under the CJEU’s case law, a national court must consider three questions. First of all, to determine whether a TCN has a right of residence under the Zambrano principle. If a right of residence is established, then the second and third questions address whether the TCN can still be deported. 

Accordingly, the first question is whether there is a relationship of dependency between the TCN and the EU citizen, such that the EU citizen would be forced to accompany the TCN and leave the territory of the EU as a whole.

The second question is whether the said TCN’s conduct or offence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society of the host member state, which may justify, on the ground of protecting the requirements of public policy or public security, an order deporting them from the member state. The third question arises if there is such a threat and requires the national court to carry out a balancing exercise. Against the nature and degree of the threat, the national court must balance the fundamental rights which the CJEU recognises as relevant in this context: in particular, the right to respect for private and family life set out in article 7 of the Charter of Fundamental Rights of the European Union. The child’s best interests must be taken into account, and particular attention must be paid to their age, situation in the member state concerned, and the extent to which they are dependent on their parent. The national court must observe the principle of proportionality. The CJEU derived these limitations on the Zambrano principle from some of the language found in articles 27 and 28 of Directive (2004/38/EC)

Ms Robinson argued that the CJEU’s use of the phrase “exceptional circumstances” in CS demonstrates that the interests of a child of a Zambrano carer must carry great weight and can only be outweighed by particularly compelling circumstances. She relied on Advocate General M Szpunar’s opinion in CS that deportation of a third-country parent could only be justified “in exceptional circumstances” based on an on “imperative reason relating to public security”. However, Lord Stephens found that a textual analysis of the judgment in CS made it clear that the CJEU did not adopt the AG’s position in relation to “exceptional circumstances”. At para 30 of CS, the CJEU recognised “an exception” to the Zambrano principle which was “linked, in particular, to upholding the requirements of public policy and safeguarding public security.” That was inconsistent with the “imperative grounds” test, derived from article 28 of the Directive, which the CJEU did not incorporate into the exception to the Zambrano principle. 

The rejection of the test of imperative grounds was further apparent from para 40 which required the expulsion decision to be “founded on the existence of a genuine, present and sufficiently serious threat”. That is not a test of “imperative grounds” and para 40 made clear that this is a threat to either “the requirements of public policy or of public security”. Lord Stephens found that it was clear that the CJEU rejected the proposal of enhanced protection based on imperative grounds of public security. Viewed in context, the CJEU’s reference to “exceptional circumstances” in CS simply explained that, in the prescribed circumstances, an exception can be made to the rule that a Zambrano carer cannot be compelled to leave EU territory. The CJEU repeated this formulation of the test in Marín and in KA. Overall, Lord Stephens held that: 

60. On three occasions, the CJEU has set out what must be taken into account when the deportation of a Zambrano carer is being considered. Not once has it stated that an imperative grounds test applies, nor has it stated that there is an additional hurdle that there must also be exceptional circumstances. I consider that it is inconceivable that the CJEU would have omitted to mention this on three occasions if such a test applied.

Lord Stephens judged that the Court of Appeal’s clearly reasoned conclusion could not be faulted and was plainly right. The phrase “exceptional circumstances” means that it is an exception to the general rule that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the territory of the EU. The phrase does not import an additional hurdle.

Comment 

The Supreme Court decided that the UK’s withdrawal from the EU had no impact on this appeal, but the legal principles to be applied may change after 31 December 2020. But in any event Zambrano failed to help Ms Robinson who provided primary care to her British son and her convictions for drug dealing could not be erased by the Zambrano doctrine. 

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Brexit, CFR, Children, CJEU, Court of Appeal, European Union, Jamaica, UKSC and tagged , , , , , . Bookmark the permalink.

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