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On appeal from: [2018] EWCA Civ 85

The Supreme Court has unanimously dismissed this appeal concerning the extent to which a non-member state national, who is the parent of a dependent European Union (“EU”) citizen child, is protected against deportation from the territory of the EU pursuant to the principle in Ruiz Zambrano v Office national de l’emploi (Case C-34/09) (the “Zambrano principle”, and a person protected pursuant to it a “Zambrano carer”). The issue is whether a Zambrano carer enjoys enhanced protection, such that she can only be deported in “exceptional circumstances”.

Ms Robinson, a Jamaican national, was convicted of supplying a Class A drug in the UK in 2006. The Home Secretary sought to deport her but in the course of her lengthy appeal proceedings she had a son, D, who is a UK citizen, and for whom she is the primary carer. The appellant thereafter applied for leave to remain. The respondent refused that application.

The appellant’s appeal against deportation was dismissed by the First-tier Tribunal. On appeal to the Upper Tribunal, the appellant argued that she had a right to reside in the EU derived under the Zambrano principle from D’s rights as an EU citizen. The Upper Tribunal found that there were errors of law in the First-tier Tribunal’s decision, set it aside and remade it, allowing the appeal.

The respondent appealed to the Court of Appeal. Before the appeal was heard, the Court of Justice of the EU (the “CJEU”) delivered judgment in two cases which restricted the extent of the Zambrano principle. In S v Secretary of State for the Home Department (Case C-304/14) (“CS”), it held that “in exceptional circumstances a member state may adopt an expulsion measure…”.

On that basis, the Court of Appeal allowed the appeal and remitted the case to the Upper Tribunal for redetermination. The Court of Appeal held that the phrase “exceptional circumstances” in CS was not an additional requirement which the state must satisfy, but merely summarised an exception to the general rule that D, an EU citizen, cannot be compelled to leave the territory of the EU.

The appellant appealed to the Supreme Court contending that the phrase created an additional hurdle to deportation.

The Supreme Court unanimously dismissed the appeal and held that the phrase “exceptional circumstances” does not import an additional hurdle before a Zambrano carer can be deported from the territory of the EU. The case is remitted to the Upper Tribunal for redetermination on that basis.

The Zambrano principle applies in very specific situations where, if a third-country (ie non-member state) national were not given a right to reside in the EU, a dependent EU citizen would be forced in practice to leave the territory of the EU. The EU citizen would then be deprived of the genuine enjoyment of the substance of the rights conferred by EU citizenship. The right of residence of a Zambrano carer therefore derives from the rights of the dependent EU citizen. It flows from article 20 of the Treaty on the Functioning of the EU, which establishes EU citizenship. The CJEU has recognised the significance of EU citizenship, while confirming that it is subject to limitations. The United Kingdom’s withdrawal from the EU has no impact on this appeal, but the legal principles to be applied may change after 31 December 2020.

The case law of the CJEU shows that a national court must consider three questions. The first question is to determine whether a third-country national 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 third country national can still be deported. Accordingly, the first question is whether there is a relationship of dependency between the third-country national and the EU citizen, such that the EU citizen would be forced to accompany the third-country national and leave the territory of the EU as a whole.

The second question is whether the third-country national’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, it 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 in article 7 of the Charter of Fundamental Rights of the European Union. In a case involving children, account is to be taken of the child’s best interests, 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 ensure that the principle of proportionality is observed. The CJEU derived these limitations on the Zambrano principle from some of the language in articles 27 and 28 of Parliament and Council Directive 2004/38/EC (the “Directive”).

The appellant argues 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 relies on the Advocate General’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”.

The Supreme Court holds that the CJEU did not adopt the Advocate General’s proposed test. In CS, the CJEU recognised “an exception” to the Zambrano principle “linked, in particular, to upholding the requirements of public policy and safeguarding public security”. That is inconsistent with an “imperative grounds” test, derived from article 28 of the Directive, which the CJEU did not incorporate into the exception to the Zambrano principle. Viewed in context, the CJEU’s reference to “exceptional circumstances” in CS simply explains that, in the prescribed circumstances, an exception can be made to the rule that a Zambrano carer cannot be compelled to leave EU territory.

For judgment, please see: Judgment

For press summary, please see: Press summary

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16 Nov 2020 Morning session Afternoon session