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Supreme Court gives judgment in appeal about the proper test when the Home Office try to deport Zambrano carers

The Supreme Court has held that a Zambrano carer (a third-country national who is the primary carer of a dependent EU citizen child) can be deported where the carer’s conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and that threat outweighs the child’s fundamental EU rights.

The judgment can be found here.

The judgment means that as long as EU law applies in the UK post-Brexit, the EU citizen child of a Zambrano carer can potentially lose the enjoyment of its fundamental EU right to reside in the UK on the basis of the same EU proportionality test as under Article 27 of Council Directive 2004/38 (public policy or security grounds) where the carer’s conduct is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. That test is far less exacting than the imperative grounds test for expulsion under Article 28 of Council Directive 2004/38/EC, which gives the highest level of protection against deportation.

However, the EU proportionality assessment must take into account the child’s best interests, its EU fundamental rights and all other relevant circumstances (see Lord Stephen’s three questions that must be addressed by national courts) and therefore, despite the court rejecting the exceptional circumstances and imperative grounds test, given the stringent nature of the EU proportionality test, as derived from the judgments of the CJEU and set out by Lord Stephens in his judgment, it is strongly arguable that Zambrano carers are not left in a much weaker position than before this was decided. How long this will last, though, is as yet unclear.

The appellant, represented by Barnes, Harrild and Dyer, is a national of Jamaica who entered the UK in 2002 as a visitor and then was granted leave to remain as a student. She was later granted leave to remain as a partner of a British citizen and was granted indefinite leave to remain in 2006. In the same year, she was convicted of supplying a Class A drug and was sentenced to 2½ years’ imprisonment. A deportation order was signed against her in 2007. In 2008, she gave birth to a son who is British and therefore an EU citizen. The appellant was her son’s sole carer. She challenged the deportation order and an application made by her in 2012 for leave to remain was treated by the Secretary of State as an application to revoke her deportation order. The application was refused and a right of appeal granted to her.

The First-tier Tribunal dismissed her appeal but the determination was set aside by the Upper Tribunal (UT), which allowed her appeal, finding that the Zambrano principle was absolute and permitted no exceptions.

The Secretary of State’s appeal to the Court of Appeal was stayed pending judgments of the CJEU in Secretary of State for the Home Department v CS (C-304/14) [2017] QB 558, [2016] All ER (D) 46 (Sep) and Rendón Marín v Administración del Estado (C-165/14) [2017] QB 495, [2016] All ER (D) 86 (Oct). The CJEU judgments were delivered on 13 September 2016, following which the appellant conceded that the UT had erred in concluding that it was unnecessary to consider proportionality if it concluded that the deportation of a third-country national would require an EU national child to depart from the EU with the person being deported. The issue for the Court of Appeal was whether that error was material.

On 2 February 2018, the Court of Appeal allowed the Secretary of State’s appeal ([2018] EWCA Civ 85, [2018] All ER (D) 18 (Feb)), holding that there needed to be a genuine, present and sufficiently serious threat if the appellant was to be deported. There was no need for exceptional circumstances to be established before someone in the appellant’s position could be deported. The reference to ‘exceptional circumstances’ in CS was merely a reference to the fact that deportation of someone in the appellant’s position was a departure from the general rule. The UT’s errors were therefore material. As a consequence, the appeal should be remitted as there was a need for up-to-date information and for the son’s interests to be properly assessed.

Permission to appeal to the Supreme Court was granted on one ground, the sole issue being whether third-country nationals otherwise benefiting from the derivative right to reside pursuant to Zambrano enjoy enhanced protection against deportation, such that they can be deported in exceptional circumstances only.

The Supreme Court rejected our argument that Zambrano carers enjoy enhanced protection against deportation, holding held that there was no requirement for exceptional circumstances or imperative grounds to be established before a Zambrano carer could be deported, and upheld the Court of Appeal’s judgment that the proper test was that set out in the CJEU’s judgments in CS, Marín and KA v Belgische Staat (C-82/16) [2018] 3 CMLR 28, [2018] All ER (D) 63 (May). The phrase ‘exceptional circumstances’ used in the Attorney General’s joint opinion in CS and Marín and in the CJEU’s judgment in CS simply meant that it was an exception to the general rule that a person who enjoyed the fundamental rights of an EU citizen could not be compelled to leave the territory of the EU and it did not import an additional hurdle.

Importantly, the court set out three questions that must be addressed by national courts determining issues such as the appellant’s:

The first is whether the third-country national has a right of residence under the Zambrano principle at all, i.e. whether there is a relationship of dependency between the third-country national and the EU citizen child so that the EU child would be forced to accompany the third-country national and leave the EU territory. Only if this is established can the court address the second and third questions.

The second question is whether the third-country national’s conduct or offence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society of the EU member state.

The third question is whether that threat outweighs the child’s EU fundamental rights, in particular the child’s best interests in view of its age and its circumstances in the particular EU member state.

Therefore, whereas the court decided that the proper test was derived from the lower form of EU protection against deportation, it stressed the vital importance of decision makers undertaking a detailed and balanced proportionality assessment of all relevant factors.

Our client’s case will now be remitted to the Upper Tribunal for that proportionality assessment to be carried out, at which time it is highly likely that the framework for considering EU appeals such as our clients would have changed due to Brexit and at this stage we simply cannot predict how that framework will look.

Our Senior Partner, Paul Turner, instructed Hugh Southey QC and our in-house counsel, Iain Palmer, with vital research and casework being done by Madeleine Kelleher, our trainee solicitor.

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