Damion Harrison (Jamaica) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Elias,Lord Justice Pitchford,Lord Justice Ward
Judgment Date21 December 2012
Neutral Citation[2012] EWCA Civ 1736
Date21 December 2012
Docket NumberCase No: C5/2012/0705/AITRF

[2012] EWCA Civ 1736

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM the UPPER TRIBUNAL (Asylum & Immigration Chamber)

Mr Justice Blake and Upper Tribunal Judge Jordan (DH)

Mr Justice Blake and Upper Tribunal Judge Gill (AB)

IA/0288/2010 and IA/43128/2010

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Ward

Lord Justice Elias

and

Lord Justice Pitchford

Case No: C5/2012/0705/AITRF

C5/2012/0693/AITRF

Between:
Damion Harrison (Jamaica)
Appellant
and
Secretary of State for the Home Department
Respondent
AB (Morocco)
Appellant
and
Secretary of State for the Home Department
Respondent

Mr Richard Drabble QC and Mr Mikhil Karnik (instructed by Messrs Fadiga & Co) for the Appellant DH

Mr Richard Drabble QC and Mr Ranjiv Khubber (instructed by Joint Council for the Welfare of Immigrants) for the Appellant AB

Mr Kieron Beal QC (instructed by The Treasury Solicitor) for the Respondent

Hearing dates : 27 and 28 November 2012

Lord Justice Elias
1

This appeal concerns two separate cases. Anonymity has been granted in relation to the appellant AB, but not for Damion Harrison. However, I shall hereafter refer to him as DH.

2

The appeal raises an issue concerning the scope of the Zambrano principle enunciated by the Grand Chamber of the CJEU in Ruiz Zambrano v Office National de l'Emploi(ONEm) [2011] All E R (EC) 491. The Secretary of State has ordered that each of the appellants should be deported. In the case of Harrison, his appeal is against the decision of the Upper Tribunal upholding that order. In the case of AB (Morocco) the appeal concerns the refusal by the Secretary of State to grant the appellant a residence card which, if given, would have rendered AB's deportation unlawful. Each appellant has committed a serious criminal offence and each appellant now contends that his circumstances arguably come within the scope of the Zambrano principle. If that is correct, the Secretary of State accepts that it would affect any proportionality assessment which has to be carried out when a court has to decide whether depriving a non-EU national of the right to reside in Great Britain is compatible with respect for EU and Convention rights. If the Zambrano principle is applicable, then Article 7 of the European Charter on Fundamental Rights is engaged. If not, EU law is not engaged and the proportionality assessment has to be made, as it was in each of these cases, solely by reference to Article 8 of the European Convention on Human Rights. There is at least arguably a difference in the way the proportionality exercise has to be conducted if EU law is engaged.

3

The appellants do not, in fact, go so far as to contend that Zambrano is necessarily applicable to their circumstances. Their case is that it is not acte clair that it is inapplicable and that there should therefore be a reference to the CJEU to determine that question. The Secretary of State submits that the position is acte clair and that the doctrine does not apply.

4

Both appellants also contend that even if EU law is not applicable, the lower courts erred in concluding that deportation was compatible with their Article 8 rights. However, that submission was not advanced orally by Mr Drabble QC, who appeared for both defendants, although he did not formally abandon it.

5

Before turning to the facts, I will consider the scope of the Zambrano principle. I will analyse the case in the context of the earlier jurisprudence and then consider the subsequent EU cases which have considered it.

The state of the law before Zambrano.

6

It has long been established that where a worker is exercising his freedom of movement rights under EU law, the host state is required to allow residence for certain dependent family members. Were it otherwise, it would significantly deter the exercise of those freedom of movement rights.

7

Similar principles have been extended to those exercising citizenship rights even though not seeking to exercise economic rights. The Maastricht Treaty first introduced the concept of European citizenship and recognised the right to move and reside freely within the territory of the Member states provided certain conditions were met, irrespective of whether the EU citizen was economically active. The right to citizenship of the EU is now conferred by Article 20 of the Treaty on the Functioning of the European Union ("TFEU") in the following terms:

"1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely within the territory of the Member states;

….

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder."

Article 21(1) TFEU in almost identical terms confers on every citizen of the Union

"the right to move and reside freely within the territory of the Member states, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect."

8

Directive 2004/38 EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ("the Citizens Directive") consolidates and develops the rights of Union citizens. It is given effect in the UK by the Immigration (European Economic Area) Regulations 2006. The beneficiaries of the Directive are defined in Article 3 and include Union citizens who move to, or reside in, a member state other than their own, together with certain family members who accompany or join them. The family members include a spouse or partner, direct descendants under 21, and dependent direct relatives in the ascending line. The host state must facilitate the entry and residence of such persons and, by Article 7(2), this is so even if they are not nationals of a Member State and have not previously lawfully resided in another Member State: see Metock v Minister of Justice, Equality and Law Reform [2008] ECR 1–6241, para 64.

9

Where the EU citizen lawfully resides for more than three months, the non-EU national family member should be issued with a residence card under Article 9.

10

The Directive lays down a partial harmonisation in respect of the conditions under which a Member State may expel the national of another state. Article 27 permits a refusal of residence on grounds of public policy if certain requirements are met. By Article 27(2) it is expressly stated that such measures must comply with the principle of proportionality "and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures." That is not the position where a court is simply focusing on respect for private or family life independently of EU rights under Article 8 of the European Convention. A court is then obliged to have regard to wider principles of public policy and in particular the deterrent effect of deportation: see the decision of the Strasbourg court in Maslov v Austria [2008] 47 EHRR 20, and the strong emphasis on this aspect of public policy in particular in a number of decisions of the Court of Appeal recently considered by that Court in AM v Secretary of State for the Home Department [2012] EWCA Civ 1634.

11

The derivative right to reside for a non-EU family member has been extended and may be conferred on those who are not defined as "beneficiaries" within the terms of the Directive provided some element of freedom of movement exists. In practice the most exiguous cross-border link will suffice to engage EU law, as is demonstrated by the decision in Zhu and Chen v Secretary of State for the Home Department [2004] ECR 1–9925. A child, a national of Ireland, was living in Wales. She was born in Belfast and qualified as an Irish national but did not meet the conditions for UK nationality. She was taken to Cardiff by her mother. She had a right to reside in Wales by virtue of her EU citizenship although at the material time it was permissible under Directive 90/64, which at the time governed the rights of residence and movement of EU citizens who were not economically active, for the host member state to require the citizen to be covered by sickness insurance and to have sufficient resources not to be a drain on the social assistance system of member states. The child could not provide the resources personally but her mother, who was also her carer, could do so. The mother could not qualify as the dependent of the daughter under Directive 90/64 (and nor could she under Directive 2004/38) because she was not a dependent relative in the ascendant line; indeed, this was the converse situation since her daughter was dependent on her. However, the court held that she had a derivative right to reside with the child on the grounds that otherwise the child's citizenship right of residence, accorded at that time by Article 18(1) EC, would be deprived of any useful effect. This was so notwithstanding that the mother had never intended to live in Ireland, that she and the child had been there for a very brief period only, and indeed that she had chosen to have her child born in Ireland specifically in order to create the cross-border link required to secure a right to reside in Great Britain for herself and her child.

The decision in Zambrano.

12

Zambrano removed...

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