Robinson (Jamaica) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Stephens,Lady Black,Lord Lloyd-Jones,Lord Sales,Lord Burrows |
| Judgment Date | 16 December 2020 |
| Neutral Citation | [2020] UKSC 53 |
| Court | Supreme Court |
[2020] UKSC 53
Lady Black
Lord Lloyd-Jones
Lord Sales
Lord Burrows
Lord Stephens
Appellant
Hugh Southey QC
Iain Palmer
(Instructed by Barnes Harrild & Dyer (Croydon))
Respondent
David Blundell QC
Julia Smyth
(Instructed by The Government Legal Department)
Heard on 16 November 2020
( with whom Lady Black, Lord Lloyd-Jones, Lord Sales and Lord Burrows agree)
This appeal raises the issue as to whether a third-country (ie non-member state) national (“TCN”) otherwise benefiting from the derivative right to reside within the territory of the European Union pursuant to the principle in Ruiz Zambrano v Office national de l'emploi (Case C-34/09) EU:C: 2011:124; [2012] QB 265 (“ Zambrano”) enjoys enhanced protection against deportation, such that she can be deported in “exceptional circumstances” only. In Zambrano, the Court of Justice of the European Union (“the CJEU”) held that a TCN parent of a Union citizen child resident in Union territory who was dependent on the TCN parent, was entitled to a right of residence if expulsion of the TCN parent would require the child to leave the territory of the Union, thereby depriving the child of the genuine enjoyment of the substance of the child's Union citizenship rights. The principle extends to dependants who are not children, and applies even though the Union citizen has not exercised their right of free movement. The right of residence of the TCN is a derivative right, that is, one derived from the dependent Union citizen. It flows from article 20 of the Treaty on the Functioning of the European Union (“article 20FEU”) and was expressed in unqualified terms in Zambrano so as to be thought to prevent expulsion of the TCN parent in all circumstances.
The Upper Tribunal (“the UT”) in its decision promulgated on 23 August 2013 proceeded on the basis that the Zambrano right of residence was unqualified, so that there was an absolute prohibition preventing deportation of the TCN parent without any consideration of proportionality even if that parent had committed serious crimes.
The Secretary of State for the Home Department (“the Secretary of State”) appealed to the Court of Appeal against the determination of the UT which appeal was stayed to await the judgments of the CJEU in S v Secretary of State for the Home Department (Case C-304/14) EU:C: 2016:674; [2017] QB 558 (“ CS”) and Rendón Marín v Administración del Estado (Case C-165/14) EU:C: 2016:675; [2017] QB 495 (“ Marín”). These judgments were delivered on 13 September 2016.
By its judgments in CS and Marín the CJEU held that there was a limitation on the Zambrano derivative right of residence so that the right was not absolute. In CS at para 36 it stated that “article 20FEU does not affect the possibility of member states relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security.” In the same judgment at para 50 it stated “However, in exceptional circumstances a member state may adopt an expulsion measure provided that it is founded on the personal conduct of that third-country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that member state, and that it is based on consideration of the various interests involved, matters which are for the national court to determine” (emphasis added).
Following the delivery of the judgments in CS and Marín the issues on appeal narrowed. The appellant accepted that the UT had erred in law in that it had wrongly concluded that protection against removal was absolute and there was no need to consider proportionality if it concluded that the deportation of a TCN parent would require a child who was a Union citizen to depart from the territory of the Union with the person being deported. On behalf of the Secretary of State it was submitted and the Court of Appeal [2018] EWCA Civ 85; [2018] WLR 81 held at para 67, that “exceptional circumstances” in para 50 of CS “simply means that it is an exception to the general rule” which general rule was “that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the EU”. The Court of Appeal added that “It does not mean that, where the criteria set out in the proviso are satisfied, there is an additional hurdle that there must also be exceptional circumstances.” The Court of Appeal remitted the case to the UT in order to carry out the proportionality exercise required by the decisions of the CJEU in CS and Marín.
The appellant applied for permission to appeal to the Supreme Court on three grounds:
a. Ground one: Whether the Court of Appeal was wrong to conclude that there was no need for exceptional circumstances to be established before a person relying on Zambrano could be deported.
b. Ground two: Whether there was a sufficient evidential basis for finding that the deportation of the appellant was potentially lawful.
c. Ground three: Whether the Court of Appeal erred by remitting rather than determining proportionality directly.
On 4 July 2019 permission to appeal was granted on ground one only (whether exceptional circumstances need to be established before a Zambrano carer could be deported). That is the only question to be determined in this appeal.
After the Court of Appeal delivered its judgment on 2 February 2018 the CJEU on 8 May 2018 delivered judgment in KA v Belgische Staat (Case C-82/16) EU:C: 2018:308; [2018] 3 CMLR 28 (“ KA”) which again addressed the test that should be applied as an exception to the Zambrano principle. This means that there are now three CJEU decisions addressing the sole issue in this appeal.
It is a feature of this appeal that the decisions in Zambrano, Marín, CS and KA were all decisions of the CJEU (Grand Chamber). In this judgment I will refer to these decisions as the decisions of the CJEU to avoid repeating Grand Chamber on each occasion.
The appellant is a national of Jamaica who was born on 13 March 1975. She is now aged 45. Initially she entered the United Kingdom as a visitor on 2 August 2002 and was granted leave to enter until 23 August 2002. Further extensions were made permitting her to remain as a student until 28 February 2004.
On 11 November 2003 the appellant married Marlon MacPherson, a person present and settled in the United Kingdom. Following her marriage and on 24 February 2004, she applied for leave to remain as the spouse of a person present and settled in the United Kingdom. She was granted leave until 2 March 2006. On 28 February 2006 she applied for indefinite leave to remain which was granted on 22 March 2006.
The appellant committed a serious criminal offence, of supplying a class A drug (cocaine). On 5 October 2006, at Wood Green Crown Court the appellant was convicted of this offence and was sentenced to a period of imprisonment of two years and six months. The appellant's evidence to the First-tier Tribunal was that she decided to sell drugs as she needed additional funds because her grandmother had fallen seriously ill in Jamaica with heart failure, arthritis, and high blood pressure.
On 20 November 2007 a deportation order in respect of the appellant was signed by the Secretary of State.
On 24 September 2008 the appellant was detained, pending removal but her removal was subsequently deferred as she was pregnant.
On 29 December 2008, the appellant gave birth to a boy, whom I will call D, who is now almost 12 years old. His father is Mr MacPherson. D is a British national and a citizen of the Union. The appellant's evidence is that D has lived in the United Kingdom with her throughout his life.
There was a history of unsuccessful challenges to the deportation order culminating on 7 January 2009 with an unsuccessful judicial review application following which the appellant failed to co-operate with the authorities between 2009 and 2012, being listed as an absconder on 6 May 2009.
On 20 February 2012, the appellant 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. It is that decision which gave rise to a further right of appeal to the First-tier Tribunal and is the subject of these proceedings.
On appeal to the First-tier Tribunal before Judge Mitchell the appellant contended that her deportation would violate rights under article 8 of the European Convention on Human Rights (“ECHR”). The judgment of the CJEU in Zambrano which had been delivered on 8 March 2011 was referred to in the determination of Judge Mitchell promulgated on 7 December 2012. However, the appeal before Judge Mitchell proceeded purely on the basis that deportation would violate the article 8 ECHR rights of the appellant, D and of Mr MacPherson. In summary the evidence before Judge Mitchell was that by 22 February 2012 the appellant and her husband were living separately but had prior to the hearing reconciled so that they were back together again. The appellant stated that her husband played an important role in D's life and that the deportation order requiring the appellant to leave the United Kingdom would also require D to leave with her so as to separate the appellant and her son from her husband who would remain in the United Kingdom. Judge Mitchell carried out an article 8 ECHR proportionality exercise stating at para 74 that
“the appellant was convicted of...
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