Damion Harrison (Jamaica) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Pitchford,Lord Justice Ward |
| Judgment Date | 21 December 2012 |
| Neutral Citation | [2012] EWCA Civ 1736 |
| Docket Number | Case No: C5/2012/0705/AITRF |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2012 |
[2012] EWCA Civ 1736
COURT OF APPEAL
Ward, Elias and Pitchford LJJ
Mr Richard Drabble QC and Mr Mikhil Karnik instructed by Messrs Fadiga & Co, for DH;
Mr Richard Drabble QC and Mr Ranjiv Khubber instructed by Joint Council for the Welfare of Immigrants, for AB;
Mr Kieron Beal QC instructed by the Treasury Solicitor, for the Secretary of State.
AM v Secretary of State for the Home DepartmentUNK [2012] EWCA Civ 1634
Dereci and Others v Bundesministerium fur InneresECAS (Case C-256/11); [2012] All ER(EC)373; [2012] 1 CMLR 45; [2012] Imm AR 230; [2012] INLR 151
Huang v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK[2007] UKHL 11; [2007] 2 AC 167; [2007] 2 WLR 581; [2007] 4 All EK 15; [2007] Imm AR 571; [2007] INLR 314
Iida v Stadt UlmECAS (Case C-40/11); [2013] 2 WLR 788; [2013] 1 CMLR 47
Maslov v Austria 2008 ECHR 1638/03; (2008) 47 EHRR 20; [2009] INLR 47
McCarthy v Secretary of State for the Home DepartmentECAS (Case C-434/09); [2011] All ER (EC) 729; [2011] 3 CMLR 10; [2011] Imm AR 586; [2011] INLR 450
Metock v Minister for Justice, Equality and Law ReformECAS (Case C-127/08); [2008] ECR I-6241; [2008] 3 CMLR 39; [2009] QB 318; [2009] 2 WLR 821; [2009] All ER (EC) 40; [2009] Imm AR 113; [2009] INLR 75
Nunez v Norway 2011 ECHR 55597/09
R v Secretary of State for the Home Department ex parte RazgarUNK [2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821; [2004] Imm AR 381; [2004] INLR 349
Sanade (British Children — Zambrano — Dereci; [2012] UKUT 48 (IAC); [2012] Imm AR 597; [2012] INLR 633
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166; [2011] 2 WLR 148; [2011] 2 All ER 783; [2011] Imm AR 395; [2011] INLR 369
Zambrano v Office national de I'emploiECAS (Case C-34/09); [2012] QB 265; [2012] 2 WLR 886; [2011] All ER (EC) 491; [2011] 2 CMLR 46; [2011] Imm AR 521; [2011] INLR 481
Zhu and Chen v Secretary of State for the Home DepartmentECAS (Case C-200/02); [2004] ECR I-9925; [2005] QB 325; [2004] 3 WLR 1453; [2005] All ER (EC) 129; [2004] Imm AR 754; [2005] INLR 1
Charter of Fundamental Rights of the European Union, Articles 7, 24 & 51
Directive 2004/38/EC (‘the Citizens Directive’), Articles 3, 7, 9, 24 & 27
European Convention on Human Rights, Article 8
Immigration (European Economic Area) Regulations 2006, regulation 21
Treaty on European Union (Maastricht Treaty)
Treaty on the Functioning of the European Union, Articles 20 & 21
UK Borders Act 2007, section 32
European Union law — right of residence — third country nationals — family member ofEU citizen —Zambrano principle — deprivation of genuine enjoyment of the substance of rights — EU citizen not forced to leave EU territory — EU law not engaged — human rights — Article 8 of the ECHR — family life — proportionality — serious criminal conduct
These two appeals were conjoined as they raised an issue concerning the scope of the Zambrano principle enunciated by the Court of Justice of the European Union in Zambrano v Office national de I'emploiECAS (Case C-34/09). That principle was that Article 20 of the Treaty on the Functioning of the European Union precluded national measures which had the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.
DH was a citizen of Jamaica. AB was a citizen of Morocco. Both men had come to the United Kingdom, married a British citizen and been granted indefinite leave to remain. DH's leave had been obtained by deception. His marriage was found to be not genuine as he was in fact in a relationship with another woman with whom he had three children. He was convicted of conspiracy to supply a Class A drug and possession of a weapon. He was imprisoned for seven years. The Secretary of State for the Home Department ordered his deportation. The Upper Tribunal upheld that order. AB was convicted of a serious sexual assault on a 61 year old woman and sentenced to seven years in prison. He was deported after serving four years of his sentence. His marriage was dissolved. He returned to the United Kingdom illegally and married an Irish citizen with whom he had two children. He was arrested following a domestic dispute and a second order was made for his deportation. His application for a residence permit as the spouse of an EU national was rejected. The Upper Tribunal dismissed the Claimants' appeals. It held that, although deportation would impact adversely on the rights of the Claimants and their families under Article 8 of the ECHR, it was a proportionate measure considering the Claimants' criminality and the public interest.
Before the Court of Appeal, the Claimants submitted that the Zambrano principle arguably extended beyond the situation where an EU citizen, who was a partner or child of a non-EU national, was forced to leave the territory of the EU. They also submitted that the Upper Tribunal had erred in concluding that deportation was compatible with their rights under Article 8 of the ECHR.
Held, dismissing the appeals:
(1) The application of the Zambrano test required a court to focus on whether, as a matter of reality, the EU citizen would be obliged to give up residence in the EU if the non-EU national were removed from the EU. There was no de facto compulsion in the Claimants' cases. The question was therefore whether the Zambrano principle could apply where an EU citizen was not forced, as a matter of substance, to follow the non-EU national out of the EU, but where their continuing residence in the EU was affected in some sense because, for example, the quality of life was diminished. If the EU citizen, be it wife or child, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there was nothing in the jurisprudence to suggest that EU law would be engaged: McCarthy v Secretary of State for the Home DepartmentECAS (Case C-434/09); Dereci and Others v Bundesministerum fur InneresECAS (Case C-256/11) and Iida v Stadt UlmECAS (Case C-40/11) considered. Rights under Article 8 of the ECHR might then come into play to protect family life, but that was an entirely distinct area of protection. The right of residence was a right to reside in the territory of the EU, not a right to any particular quality of life or to any particular standard of living. Accordingly, there was no impediment to exercising the right to reside if residence remained possible as a matter of substance, albeit that the quality of life was diminished. If the quality or standard of life would be seriously impaired by excluding the non-EU national such that it was likely, in practice, to compel the EU citizen to give up residence and travel with the non-EU national, the Zambrano doctrine would apply, and the EU citizen's rights would have to be protected. It was also highly pertinent that the Court of Justice had confirmed in Dereci that the fact that the right to family life was adversely affected, or that the presence of the non-EU national was desirable for economic reasons, would not constitute factors capable of triggering the Zambrano principle. The position was acte clair and the Claimants were seeking to extend the Zambrano doctrine beyond its legitimate limits (paras 55 and 63–70).
(2) As EU law was not engaged in either case, the proportionality assessment had to be made solely by reference to Article 8 of the ECHR. AB was at all times an illegal entrant and had committed a serious criminal offence. Therefore, there was every justification for the conclusion reached by all judges considering his case that his deportation would not infringe the Article 8 rights either of himself or any member of his family. DH had not lawfully been present in the United Kingdom. His grant of indefinite leave to remain had been procured by deception and his relationship with his partner had been formed when his precarious immigration status was known to her. The Upper Tribunal had given proper regard to the interests of the children and had recognised that they were innocent victims of DH's conduct and would suffer if he was deported. It also had regard to the nature of the offence which, although not conclusive against DH, was a factor of considerable weight. The approach of the Upper Tribunal was appropriate and the balancing exercise was conducted fully and fairly (paras 71–80).
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...
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