Robinson (Jamaica) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Underhill LJ,Lord Justice Singh,Lindblom LJ |
| Judgment Date | 02 February 2018 |
| Neutral Citation | [2018] EWCA Civ 85 |
| Date | 02 February 2018 |
| Docket Number | Case No: C9/2014/3410 |
| Court | Court of Appeal (Civil Division) |
[2018] EWCA Civ 85
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UT Judges Jordan and Pitt
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
Lord Justice Lindblom
and
Lord Justice Singh
Case No: C9/2014/3410
David Blundell (instructed by the Government Legal Department) for the Appellant
Hugh Southey QC and Iain Palmer (instructed by Barnes, Harrild and Dyer) for the Respondent
Hearing date: 28 November 2017
Judgment Approved
Introduction
This case has a long and somewhat complicated procedural history. However, for reasons that will become apparent, the ultimate issue which this Court now has to decide on this appeal has become a narrow one.
This is an appeal by the Secretary of State against the decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) dated 23 August 2013. By that decision the UT allowed an appeal by the present Respondent against the decision of the First-tier Tribunal (“FTT”) promulgated on 7 December 2012. The FTT had dismissed her appeal against the Secretary of State's decision dated 29 August 2012 to refuse to revoke a deportation order in force against the Respondent.
This appeal was stayed by order of Sales LJ pending the determination of two cases which had been the subject of references to the Court of Justice of the European Union (“CJEU”), in Case C-165/14 Rendón Marin v Administración del Estado [2017] QB 495 and Case C-304/14 Secretary of State for the Home Department v CS [2017] QB 558. Judgment was given in those two cases by the CJEU on 13 September 2016. It was decided by the CJEU that the principle which it had laid down in its earlier decision in Case C-34/09 Ruiz Zambrano v Office National de l'Emploi [2012] QB 265 was not absolute and in principle permits of exceptions.
Originally the Secretary of State sought to advance three grounds of appeal before this Court. The first two grounds are closely related to each other. It is accepted that the second ground does not contain anything of substance which is materially different from the first ground. Furthermore, the third ground of appeal was in the alternative to the first two grounds. The Secretary of State no longer pursues the third ground of appeal.
For her part the Respondent now concedes that, in the light of the recent judgments of the CJEU, there were errors of law made by the UT in the present case. In particular she accepts that the UT was wrong in law to regard the principle in Zambrano as being an absolute one. However, the Respondent submits that those errors of law were not material and so invites this Court to dismiss the Secretary of State's appeal despite those errors.
In response the Secretary of State submits that the test for materiality is a relatively low one. She submits that it cannot be said that the UT decision would inevitably have been the same even without the errors of law which it is now conceded were made. Accordingly, the Secretary of State submits that this case should be remitted to the UT for redetermination, after considering any further evidence that may be necessary.
Factual Background
The Respondent is a national of Jamaica, who was born on 13 March 1975.
She first entered the United Kingdom (“UK”) on 2 August 2002 and was granted leave to enter as a visitor until 23 August 2002. She applied for leave to remain and this was extended until 2 February 2003.
On 30 January 2003 she applied for leave to remain as a student. This was granted until 28 February 2004.
On 11 November 2003 she married Marlon MacPherson, who was a person present and settled in the UK.
On 24 February 2004 she applied for leave to remain as the spouse of a person present and settled in the UK. She was granted leave until 2 March 2006.
On 28 February 2006 she applied for indefinite leave to remain and this was granted on 22 March 2006.
The Respondent committed a serious criminal offence, of supplying a Class A drug (cocaine). She was convicted of this at the Crown Court at Wood Green on 5 October 2006. On the same day she was given a sentence of imprisonment of 2 years and 6 months.
The Secretary of State then decided to take deportation action against the Respondent. A deportation order was signed on 20 November 2007. That process went through many stages, including appeals and applications for judicial review. Eventually on 20 February 2012 the Respondent submitted an application for leave to remain outside the Immigration Rules. This was treated by the Secretary of State as an application to revoke her deportation order. On 29 August 2012 the Secretary of State refused the application.
In the meantime, on 29 December 2008, the Respondent had given birth to a boy, whom I will call D.
The Respondent's appeal against the Secretary of State's decision was dismissed by FTT Judge Mitchell in a decision promulgated on 7 December 2012.
The appeal to the UT (which comprised UT Judges Jordan and Pitt) was allowed on 23 August 2013. The UT found that there had been errors of law in the FTT's determination and so that determination should be set aside. The UT then remade the decision and allowed the Respondent's appeal against the Secretary of State.
On 2 October 2014 the Secretary of State lodged the present appeal with the Court. On 19 January 2015 a stay was granted on the papers by Sales LJ.
The Advocate General's joint opinion in Rendón Marin (which was a reference by a Spanish Tribunal) and CS (which was a reference by the UT in this country) was given on 4 February 2016. The judgments of the CJEU in the two cases were handed down on 13 September 2016.
The legal background
Article 20 of the Treaty on the Functioning of the European Union (“TFEU”) provides:
“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 of the TFEU provides:
“1. Every citizen of the Union shall have 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.
…”
On 29 April 2004 the European Parliament and the Council of the EU adopted the Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of member states: Directive 2004/38/EC (“the Directive”). That Directive replaced earlier legislation, in particular Directive 64/221/EEC. It is unnecessary for present purposes to set out the specific provisions of the Directive, save for two, on which there was some argument before this Court: Articles 27 and 28.
Article 27 provides:
“1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall 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.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
…”
Article 28 provides:
“1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:
(a) have resided in the host Member State for the previous ten years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.”
The Directive was implemented in domestic law by the Immigration (European Economic Area) Regulations 2006 (SI 2006 No. 1003) (“the 2006 Regulations”). Those Regulations subsequently had to be amended in order to give effect to the judgment of the CJEU in Zambrano. References to the 2006 Regulations in this judgment are references to the version that was in force at the material time. Those Regulations were further amended to take account of the judgments...
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