Under the EU citizenship rules at issue in 2020, a British child’s dependent relationship with a parent could give that parent a derivative right of residence. The Court considered whether “exceptional circumstances” imposed an extra hurdle beyond the existing public-policy and proportionality tests for deportation.
The Home Secretary sought to deport a Jamaican national following a criminal conviction. She relied on her relationship with her dependent British child and the consequences for that child of having to leave the European Union.
The First-tier Tribunal dismissed her appeal under article 8 of the European Convention on Human Rights, holding that deportation was proportionate given the seriousness of the offence. The Upper Tribunal allowed the appeal. It held that D’s effective care lay with the appellant, so her removal would cause him to leave the Union, and that the Zambrano prohibition on removal was absolute. No EU-law proportionality assessment was therefore required, although the tribunal also considered that removal would not breach article 8.
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The Zambrano right and later Court of Justice decisions
In Ruiz Zambrano the Court of Justice held that a third-country national on whom a resident Union-citizen child depends has a derivative right of residence under article 20 TFEU if expulsion would require the child to leave the territory of the Union and thereby deprive the child of the genuine enjoyment of the substance of Union citizenship rights. The right is derived from the Union citizen, not an autonomous right of the third-country national, and arises only in the very specific situation of such compulsion to leave the Union as a whole.
In CS and Rendón Marín the Court of Justice held that the right is not absolute. Article 20 TFEU does not prevent a member state from relying on an exception linked to public policy and public security. An expulsion measure may be taken where it is founded on the personal conduct of the third-country national, that conduct constitutes a genuine, present and sufficiently serious threat adversely affecting a fundamental interest of society, and the measure is proportionate. The same approach was repeated in KA. Automatic refusal based solely on a criminal record is precluded; the national court must assess the danger to society and the consequences for public policy or public security, and must take account of the child’s best interests under the Charter of Fundamental Rights.
The Court of Appeal and the issue on appeal
After those judgments the appellant accepted that the Upper Tribunal had been wrong to treat the protection as absolute. The Court of Appeal held that “exceptional circumstances” in the Court of Justice’s formulation simply means an exception to the general rule that a person enjoying the fundamental rights of an EU citizen cannot be compelled to leave the EU. It does not add a further hurdle once the stated criteria are met. The Court of Appeal therefore allowed the Secretary of State’s appeal and remitted the case to the Upper Tribunal to carry out the required proportionality exercise on up-to-date evidence, particularly concerning the impact on D.
Permission to appeal to the Supreme Court was granted only on whether exceptional circumstances must be established before a Zambrano carer can be deported. Lord Stephens, with whom Lady Black, Lord Lloyd-Jones, Lord Sales and Lord Burrows agreed, rejected the argument that the phrase requires particularly compelling reasons or gives the child’s interests special additional weight beyond the established balancing exercise.
Why no additional requirement arises
The Advocate General in CS had proposed both a reference to exceptional circumstances and a requirement of an imperative reason relating to public security. The Court of Justice did not adopt that imperative-grounds test. Its analysis expressly links the exception to public policy as well as public security, and states the operative test as a genuine, present and sufficiently serious threat. The single use of “exceptional circumstances” in CS is a summary of that preceding analysis, not an extra condition. Rendón Marín and KA set out the same test and the factors to be considered—proportionality, personal conduct, the interests of the child, family life and the Charter—without mentioning any further exceptional-circumstances hurdle. Lord Stephens considered it inconceivable that such a requirement would have been omitted from three Grand Chamber judgments if it formed part of the law.
The national court must therefore determine whether dependency would compel the Union citizen to leave the Union; whether the third-country national’s conduct meets the genuine, present and sufficiently serious threat test; and whether expulsion is proportionate. The United Kingdom’s withdrawal from the European Union had no effect on the appeal, although the applicable law might change after the end of the implementation period.
Verdict: The Court unanimously dismissed the appeal. Exceptional circumstances did not add a separate test. The Upper Tribunal had to reconsider the facts, including proportionality, under the proper legal standard. The Supreme Court did not decide whether deportation was lawful in this case.
Source: Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53
