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

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

Zambrano removed the requirement for even an exiguous cross-border link. The facts were that the applicant and his wife were Colombian nationals. They applied for asylum in Belgium when they were accompanied by their first child. This was refused but they remained in Belgium and, despite not holding a work permit, the applicant obtained full-time employment with a Belgian company. Two further children were born in Belgium in 2003 and 2005. They were Belgian nationals and therefore EU citizens.

The applicant and his wife then applied for residence permits on the basis of the children’s Belgian nationality but their applications were rejected. After losing his job, being denied an employment permit, and twice being denied unemployment pay in Belgium, the applicant sought a right of residence before the employment tribunal at Brussels, either by virtue of the EC Treaty or, alternatively, on the basis that he enjoyed a derived right of residence of the kind recognised in Chen.

The Court referred the matter to the Court of Justice for a preliminary ruling. It was accepted that the Citizens Directive was inapplicable since none of the EU citizens had exercised freedom of movement rights. Similarly the case differed from Chen because whilst the two children were of Belgian nationality and were therefore citizens of the EU, there was no cross-border element in play. The children were residing in Belgium by reason of being nationals of that country. They were not relying on any EU right to do so.

The question to be determined was whether, despite the lack of any cross-border feature, the non EU family members could derive any rights under EU law from the rights of residence and free movement conferred by Articles 20 and 21 on their children who were EU citizens. As Advocate General Sharpston commented, it raised the issue “whether Article 21 TFEU encompasses two dependent rights - a right to move and a free standing right to reside - or whether it merely confers a right to move (and then reside)” (emphasis in the original).

The Advocate General considered that it recognised two rights. She considered that it would be paradoxical if the citizen of the EU could rely on fundamental rights of EU law when exercising an economic right to free movement but could not do so when merely residing in an EU Member state by virtue of citizenship rights. Accordingly, she concluded that this was not a purely internal matter, as the Commission and all the Member States who made representations had sought to argue, and that the EU rights of the children were engaged.

In this case it was clear that the children would in practice be compelled to leave the EU if the applicant was removed from Belgium and accordingly the children would not be able to move and reside within the territory of the European Union. It was, therefore, necessary to confer a derivative right of residence on the applicant to prevent improper interference with the children’s rights of residence as Union citizens. The Advocate General considered that the right was in principle defeasible; in an appropriate case it might be proportionate to refuse to grant the derivative right to an ascendant family member notwithstanding the interference with the child’s EU right.

The Grand Chamber in large part adopted the analysis of AG Sharpston. After confirming, as the Court had stated on numerous previous occasions, that “Citizenship of the Union is intended to be the fundamental status of the nationals of the Member states”, the Court continued (paras 42-45):-

“42.

In those circumstances, art 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann’s case (para 42)).

43.

A refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

44.

It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.

45.

Accordingly, the answer to the questions referred is that art 20 TFEU is to be interpreted as meaning that it precludes a member state from refusing a third country national upon which his minor children, who are European Union citizens, are dependent, a right of residence in the member state of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”

In my judgment by referring to action which deprives children of the “substance of the right” the Court is intending to say that the right may be infringed if in practice the children will be forced to leave with their ascendant relative even though they could in theory, as a matter of strict law, remain in the state of which they are nationals. It would be no answer for the state to say that the parents should be denied the right to remain because the children can be adopted, for example. That approach of the Court is consistent with a fundamental tenet of EU jurisprudence which is that it always looks at substance rather than form.

Zambrano has subsequently considered in a number of cases. In McCarthy v Secretary of State for the Home Department [2011] All ER (EC) 729 the applicant was both a national of the United Kingdom and of Ireland but (unlike the EU citizen in Chen) she had always lived in the United Kingdom and was on state benefits. She obtained an Irish passport following her marriage by reason of her ancestry. She and her husband applied for a residence permit and a residence document under EU law as respectively an EU citizen and the spouse of an EU citizen. She advanced her claim under the Citizens’ Directive. The court held that this was inapplicable since she had never exercised any right of free movement and had always resided in the Member State of which she was a national. The fact that she was also a national of another Member State was immaterial.

The court recognised that Zambrano in certain circumstances protected an EU citizen’s right of residence even where no freedom of movement right had been exercised. Here, however, there was nothing depriving the applicant of the substance of the rights associated with her status as an EU citizen; she was not obliged to follow her husband and there was nothing which impeded the exercise of her right to move and reside freely within the territory of the Member States. This was a purely internal matter with no factor linking the situation with EU law. It is to be noted that disruption of family life was not sufficient to engage EU law.

The third authority is Dereci & Others v Bundesministerum für Inners [2012] All ER (EC) 373. In that case a reference was made to the CJEU in five cases in which the claimants were all nationals of non-EU member countries who were family members of Union citizens residing in Austria. They wished to live with their families there. In each case the Union citizens had never exercised any right of free movement. In none of the cases were the EU citizens dependent on the claimants for their subsistence. There were, however, certain material differences between the five cases.

The case of Dereci, himself a Turkish national, has some similarity to the position in AB. Dereci had entered Austria illegally in 2001 and married an Austrian citizen in July 2003. They had three children in 2006, 2007 and 2008, all of whom were Austrian nationals and therefore EU citizens. He applied for a residence permit in 2004 but was refused on the grounds that he had to be outside the territory of Austria pending the determination of his application. He was illegally in the country. The authorities also issued an expulsion order against him.

The Advocate General, A-G Mengozzi, observed that the judgments in Zambrano and McCarthy were based on the premise that “the substance of the rights attaching to the status of European Union citizen” within the meaning of Zambrano “does not include the right to respect for family life enshrined in Article 7 of the Charter and Article 8 of the Convention”. It was not, therefore, legitimate to claim that because there had been an interference with family life, it followed that the EU citizen was being deprived of a genuine enjoyment of the rights set out in Article 20 TFEU. Any protection for interference with family life had to be derived from Article 8 of the Convention. There were no EU rights in issue.

The Advocate General went on to observe, however, that there were some rather arbitrary consequences in that conventional analysis. For example, if the EU citizens had returned to Austria after having exercised free movement rights in another member State, then the Directive would apply and they would be entitled to residence permits. The Advocate General also confirmed that in his view the scope of Zambrano was not limited to cases where, as on the facts in that case, both parents were nationals of non-member countries. It might apply where only one parent was a non-EU national. The issue was whether the circumstances were such that if the ascendant non-EU national parent had to leave the territory of the EU, the EU citizen children would de facto be compelled to leave with him.

The Advocate General suggested that the answer to the question posed by the Austrian court at the current stage in the development of EU law should be as follows (para 50):

“….art 20 TFEU must be interpreted to the effect that it does not apply to a Union citizen who is the spouse, parent or minor child of a national of a non-member country, where that Union citizen has never exercised his right to move freely between the member states and has always resided in the member state of which he is a national, in so far as the situation of that Union citizen is not accompanied by the application of national measures which have the effect of depriving him of the genuine enjoyment of the substance of the rights attaching to his status as a Union citizen or of impeding the exercise of his right to move and reside freely within the territory of the member states.”(emphasis added.)

When the case came before the Court of Justice it confirmed that the fact that the EU citizen had not made use of the right of freedom of movement did not for that reason alone mean that the Court was faced with a purely internal situation. After citing the principle laid down in Zambrano, it emphasised that the principle applied only in the exceptional circumstances where the children would be forced to leave the EU, and not simply where it would be otherwise desirable for economic reasons or to keep the family together (paras 65-69):

“65.

Indeed, in the case leading to that judgment, the question arose as to whether a refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nations and reside and a refusal to grant such a person a work permit have such an effect. The court considered in particular that such a refusal would lead to a situation where those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union (see Ruiz Zambrano’s case (paras 43, 44)).

66.

It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the member state of which he is a national but also the territory of the Union as a whole.

67.

That criterion is specific in character inasmuch as it relates to situations in which, although subordinate legislation on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a member state national, as the effectiveness of Union citizenship enjoyed by that national would otherwise be undermined.

68.

Consequently, the mere fact that it might appear desirable to a national of a member state, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a member state to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.

69.

That finding is, admittedly, without prejudice to the question whether, on the basis of other criteria, inter alia, by virtue of the right to the protection of family life, a right of residence cannot be refused. However, that question must be tackled in the framework of the provisions on the protection of fundamental rights which are applicable in each case.”

The Court then turned to consider a separate issue under the title ‘The right to respect for private and family life’. The paragraphs are relied on heavily by the appellants in these proceedings and therefore it is necessary to set them out in full (paras 70-74):

“70.

As a preliminary point, it must be observed that in so far as art 7 of the Charter of Fundamental Rights of the European Union (the Charter), concerning respect for private and family life, contains rights which correspond to rights guaranteed by art 8(1) of the ECHR, the meaning and scope of art 7 of the Charter are to be the same as those laid down by art 8(1) of the ECHR, as interpreted by the case law of the European Court of Human Rights (see McB v E Case C-400 / 10 PPU [2011] All ER (EC) 379, [2011] Fam 364 (para 53)).

71.

However, it must be borne in mind that the provision of the Charter are, according to art 51(1) thereof, addressed to the member states only when they are implementing European Union law. Under art 51(2), the Charter does not extend the field of application of European Union law beyond the powers of the Union, and it does not establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Accordingly, the court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it (see McB’s case (para 51); see also Criminal proceedings against Gueye Joined cases C-483 / 09 and C-1 / 10 [2012] 1 CMLR 667 (para 69)).

72.

Thus, in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in art 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of art 8(1) of the ECHR.

73.

All the member states are, after all, parties to the ECHR which enshrines the right to respect for private and family life in art 8.

The Court then summarised its conclusion on the effect of EU law as follows (para74):

“In the light of the foregoing observations the answer to the first question is that European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a member state from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the member state of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.”

It is to be noted that in answering the question the Court did not adopt the answer suggested by the Advocate General, reproduced in paragraph 25 above. It did not accept that some impediment of the right short of denial might fall within the scope of the principle. That is consistent with its observation in paragraph 68 that it is not enough that family life is jeopardised or that the family remaining behind will be adversely economically affected. The Court’s answer also shows that it considered that it is for the national courts to determine whether, as a matter of fact, an EU citizen would be compelled to join an ascendant family member denied the right to remain in EU territory.

The final case is Iida v Stadt Um KC/C-40/11, [2012] ECR I-0000 (judgment dated 8 November 2012, not yet reported). In that case the applicant unsuccessfully sought to obtain a residence permit from Germany on the Zambrano principle notwithstanding that his wife and child were living in Austria. The court noted that in general derivative rights arise only when the Union citizen is exercising the right of freedom of movement but it also recognised that there are what it termed “very specific situations” where a Zambrano right might apply notwithstanding the lack of any cross-border feature.

I shall now set out the facts of the two cases separately, although the legal issues applicable to them are substantially the same. In order fully to appreciate the Article 8 arguments in particular, it is necessary to recount briefly the history leading up to these appeals.

AB is a national of Morocco who arrived in the United Kingdom in May 1991. He was granted indefinite leave to remain on the basis of his marriage to a British citizen in 1992. That marriage was dissolved in 1994. In 1995 AB committed a serious sexual assault on a 61 year-old woman. In 1996, he was convicted and sentenced to seven years’ imprisonment with a recommendation for deportation at the end of his sentence. He served four years in prison. The Secretary of State subsequently made a deportation order and AB was deported to Morocco on 8 June 2000.

On 25 December 2000, AB returned to the UK in breach of his deportation order. For reasons which have appeared to be inexplicable to each Judge who has considered the case (but possibly connected with the fact that he arrived in the UK on Christmas Day) he was not refused entry but was granted temporary admission subject to a condition that he later return to the airport. He subsequently absconded and began cohabiting with a British citizen, Ms. Amanda Stonebridge, in 2001. He had corresponded with her whilst in prison. They have had two children together: a girl born in April 2005 and a boy born in March 2006.

In June 2006, AB was arrested following a domestic incident between himself and Ms Stonebridge. That arrest alerted the immigration authorities to his presence in the UK and he was held in immigration detention from June 2006 for approximately one year, during which time the decision to remove him was taken. AB appealed unsuccessfully against that decision on Article 8 grounds.

Following the dismissal of this appeal, AB applied for the recognition of a right of residence as a partner of an EU national on the basis that Ms Stonebridge was an Irish citizen. That application was rejected in the absence of any Irish passport from Ms Stonebridge supporting the application. This appears to have prompted Ms Stonebridge to apply for an Irish passport in February 2007 which she was subsequently granted, apparently on the basis of her ancestry. An application was then made for a residence card for AB on the basis that the dual nationality of Ms Stonebridge gave him an enhanced residency status. The application was rejected in April 2007 and an appeal was lodged against the decision. On 25 April 2007, removal directions were issued by the Secretary of State.

Designated Immigration Judge Lewis dismissed the appeal against the Secretary of State’s decision on 1 October 2007, when he rejected both the refusal to grant a residence certificate and AB’s Article 8 claim. As to the former, the judge accepted that under EU law he had to focus on the personal conduct of the appellant, but even so he considered that it was proportionate not to grant the certificate. As to the Article 8 claim, DIJ Lewis, applying the structured approach enunciated in Razgar [2004] UKHL 27 and Huang [2007] UKHL 11, concluded that whilst the removal of AB would interfere with the right to family life of AB and the Appellant’s children and partner, it was nonetheless a proportionate response to his criminality and his illegal presence. It would be hard for the family to move to Morocco, but there were no insurmountable obstacles to their doing so.

An application for reconsideration was made and rejected by SIJ Southern and then by the High Court.

The removal direction against AB was not implemented. AB had in the meantime, in August 2007, applied for permission to marry Ms Stonebridge. Permission was granted on 3 June 2009 and the couple married on 14 September 2009. Following his marriage, AB made a further application for a residence card in July 2010 but the Secretary of State refused that application by a decision dated 28 September 2010. It is that decision which is in issue in the present appeal.

The decision was appealed to the First-Tier Tribunal (‘FTT’) on 1 December 2010 where it came before Judge Blake on 26 January 2011. The appeal was dismissed by a decision promulgated on 21 April 2011. The learned Judge’s analysis was that the appellant’s case fell within the scope of Article 3(1) of the Citizenship Directive 2004/38/EC (‘the Citizens Directive’). Ms Stonebridge was an EU national within the meaning of the EEA Regulations and AB qualified as a ‘family member’ within the meaning of those Regulations (paras 18-19). By regulation 21, AB could be deported only if he represented a “genuine, present and sufficiently serious threat” to a fundamental interest of society.

The judge noted that he had no information before him to show whether the appellant had a propensity to re-offend. However, he agreed with the observations of DIJ Lewis in the earlier hearing to the effect that AB’s remaining in the country for some ten years following an unlawful re-entry posed a genuine and present threat to maintenance control. The judge recognised that deportation would impact adversely on the Article 8 rights of the appellant and his family, but concluded nonetheless that this was one of those rare cases where the strength of society’s interest in removal justified the impact it would have upon those rights. In exercising the proportionality assessment, the judge had regard to the best interests of the children as a primary consideration as required by the decision of the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4 (a case decided between the hearing and the judge finalising his decision). The judge had evidence in particular of certain difficulties in the health of AB’s daughter.

The Upper Tribunal (Mr Justice Blake and UT Judge Gill) dismissed the appeal from the decision of Judge Blake. The UT held that the FTT had in fact been wrong to conclude that the Citizenship Directive was applicable; it was not because Ms Stonebridge had not exercised any free movement rights. The case was indistinguishable from McCarthy case decided after Judge Blake’s decision, in which the CJEU held that the Directive did not apply to an EU citizen who had not exercised freedom of movement rights even where he or she was a dual national. Ms. Stonebridge therefore had no rights under EU law and her partner could not claim any derivative right to a residence certificate.

The appellant had foreseen that possibility in the light of McCarthy and switched the focus of challenge from the Directive to the decision in Zambrano, but unsuccessfully. The Court did not accept that Zambrano was applicable either. The UT observed that Zambrano had been clarified by the ECJ in Dereci and concluded (para 25), in accordance with its earlier ruling in Sanade and Others v Secretary of State [2012] UKUT 48, that the relevant principle of EU law was that “an EU national cannot be forced to leave the European Union whether he or she has exercised free movement rights or not.” In this case the removal of the appellant would not compel the wife and children to leave because they could subsist as a family unit without him. It was accepted that it would be unreasonable to expect them to go to Morocco but nonetheless the disruption of the family did not engage EU law.

As to the contention that deportation would be incompatible with Article 8, the UT held that the decision of the FTT disclosed no error of law. The UT concluded, contrary to the submissions of counsel, that the decision of the FTT was structured, particularly when seen in the light of DIJ Lewis’ earlier decision, to which it made reference; that it properly considered the impact of deportation on the wife and children; and that sufficient weight had been given to the interests of the children in accordance with ZH (Tanzania).

The UT made two particular observations which in my view are highly pertinent to the Article 8 submissions in each of these two appeals. First, the judges confirmed the principle recently reiterated in AH v Secretary of State that “there are classes of offences so serious that, irrespective of a propensity to re-offend, public policy justifies removal”. Second, the Tribunal referred to the decision of the ECtHR in Nunez v Norway [2011] ECHE 1047 where that court concluded that exceptional circumstances were required before family life established after illegal entry with no right to remain would make removal incompatible with Article 8. As the Strasbourg court put it, “expulsion would constitute an important means of general deterrence against gross or repeated violations of the Immigration Act.”

Accordingly, the UT concluded that although Judge Blake had erred in his conclusion that the Citizenship Directive was applicable, there was no material error of law vitiating his conclusions.

DH is a national of Jamaica. He arrived in the UK on 27 February 1999 as a visitor and subsequently married in October 2000. On that basis he was granted indefinite leave to remain in January 2003.

In the meantime, he had met and started a relationship with a British woman, Kelly Power. Their first child, K was born on 12 May 2002. Later D was born in March 2010 and KD in May 2011.

On 23 November 2003, DH was arrested and later charged with an offence of conspiracy to supply a class A drugs (cocaine) and possession of a weapon (a Taser stun gun). He pleaded guilty to these offences in June 2004, and was sentenced in July 2004 to seven years’ imprisonment and recommended for deportation.

In 2007, whilst serving his sentence, DH made a claim for asylum which was rejected in November 2009. On 24 November 2009, DH was made the subject of a decision to deport under section 32 of the UK Borders Act 2007. This is the decision in issue in the present appeal.

DH appealed against the refusal to allow him leave to remain, challenging both the asylum decision and the decision to deport him. His appeal was rejected by a determination of the Asylum and Immigration Tribunal (‘AIT’) promulgated on 30 June 2010. The AIT found that it was lawful to deport him not least because DH’s original indefinite leave to remain was obtained by deception, since he had been in another relationship at the same time as the marriage on which he based his application for leave to remain and it rejected the asylum claim. No further appeal was brought in respect of the asylum decision but DH did seek permission to appeal against the decision dismissing his appeal against the deportation order. He was granted permission to appeal to the UT by SIJ Nichols on 28 July 2010.

Deputy UT Judge Lewis found that there was in fact no material error of law in the AIT’s deportation decision. An application for permission to appeal to the Court of Appeal was filed by DH on 24 November 2010. In the light of the Supreme Court’s decision in ZH (Tanzania), SIJ Perkins set aside the decision of Deputy UT Judge Lewis and remitted the matter to the UT. Before the UT, DH advanced a case essentially based on Article 8 of the Convention. He contended that as the unmarried partner of a British citizen, with whom he has three British citizen children (born May 2002, March 2010 and May 2011) it would disproportionately impact upon his three children if he were to be deported. The UT dismissed his appeal on 7 February 2012, as part of the joined cases reported in Sanade.

After reviewing the relevant case law in detail, the UT rejected DH’s appeal. The UT recognised that the young children were innocent victims of the appellant’s conduct, and the older child in particular would suffer from losing parental contact. To that extent the best interests of the children would be impaired. However, the Tribunal concluded that notwithstanding this, deportation was proportionate (para 121):

“The Court of Appeal’s decision in Lee v SSHD makes plain that separation may be the consequence of serious criminal conduct such as that engaged in by the appellant.  A few months after lying to secure indefinite leave to remain he organised a very serious offence of supplying crack cocaine.  The Secretary of State attaches particular importance to deterring drug offending by preventive measures such as deportation of those liable to it. So have the courts both in the United Kingdom and Strasbourg.  The nature of the offence is not conclusive against the appellant but it is a consideration of considerable weight. The public interest requires us to emphasise that those who use deception to enter or remain in the United Kingdom and then commit very serious offences such as those considered here cannot expect to avoid deportation because they have fathered children who were born here. This is not offending by a young man who grew up here as a child and has lived here most of his live so it is not a Maslov case. Although we have applied the principle of proportionality and not exceptionality we consider that deportation is justified in support in of the legitimate aim on the facts of this appeal.”

The Court added that it would be open to DH in the future to apply to revoke the deportation order and he could remain in contact with his children unless and until that occurred. This was a factor it considered proper to be assessed in the proportionality balancing exercise (para 122).

The UT also dealt expressly with a Zambrano argument and concluded that it was not applicable to any of the three appellants in that case. The Tribunal summarised its analysis of the relevant principles as follows (paras 89-90):

“…..Although the removal of the father would have adverse economic impact on all the families, as well as the interests of each child living in a household with its father, it cannot be said that either the children or their mothers will be required to leave with him. There is an analogy with the case of Mr Dereci who was found not to have a Zambrano right of residence. Economic reasons for maintaining family unity are not sufficient.

90.

We recognise that the appellants have submitted by way of reply that according to the Advocate General’s opinion an impairment of the exercise of the Treaty right of residence may suffice to engage the Zambrano principle. This was not how the Court answered the question, however, and in our judgment, if on the facts removal of the appellant will not require the children or spouse to follow because they have no capacity for exercising their Treaty rights independent of the person facing removal, what is being impaired is not the right to reside in the EU but the right to enjoy family life whilst so residing.……. ”

During the course of the hearing, it became clear that the parties were agreed on a number of matters which narrowly focused the issues which we have to determine. The areas of agreement and disagreement can be identified as follows:

Mr Drabble accepts that in neither of these appeals can it be said that the partner or children are effectively forced to leave the EU. However, he does contend that in each case the right to residence of the children in particular would be rendered less enjoyable if the father were to be deported. The interests of the children must always be a primary consideration as Article 24.2 of the Charter on Fundamental Rights confirms. They would lose the regular contact with their father, with the emotional and psychological damage which this might involve and, in DH’s case in particular, deportation would have an adverse effect on the partner’s ability to work.

There are four strands in Mr Drabble’s submission that the scope of the doctrine might arguably extend beyond the situation of forced removal. First, he submits that certain passages in the judgments can be read that way, and he relies in particular on the way in which the Court answered the question in Zambrano (see para 45, set out in para 17 above). It is at least arguable, he says, that depriving an EU citizen of the “genuine enjoyment of the substance of the rights” attached to EU citizenship could embrace decisions which leave the right intact but less valuable because the enjoyment is diminished. It may be enough that the right is impeded even though not lost. Mr Drabble does not go so far as to say that this formulation of the principle by the CJEU carries the day; he merely claims that there are hints that the court was recognising a potentially wider jurisprudence and that the language, no doubt carefully framed, is consistent with the Court envisaging a possible development along those lines.

Mr Drabble also relies on the fact that in both McCarthy (para 49), repeated in Iida (para 76) the Court refers to the fact that EU law may be infringed where:

“the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the member states….”

Finally, he relies in this context on paragraphs 67-68 in Dereci reproduced above, which he suggests may have been deliberately drafted in a way intended to leave open the possibility that Zambrano may apply in the grey area between deprivation of the right on the one hand and mere interference with the enjoyment of family life on the other.

Second, he places particular emphasis on paragraphs 70-74 in Dereci reproduced above, where the CJEU recognised that proportionality considerations would come into play where EU rights were engaged, and that these would include a consideration of Article 7 of the Charter. As I understand the argument, he submits that this only makes sense if the Zambrano principle can apply to an interference with the enjoyment of a right of residence falling short of the situation where the citizen is actually compelled to leave the EU. It would have no role to play where the citizen is deprived of the right.

Third, he submits that whether or not the Court has had these wider possibilities in mind in its case law so far, it would be in line with established EU principles to protect a citizen whose rights are impeded just as much as one whose rights are defeated. There is no reason to suppose that the deprivation of the right to residence would be protected but not action which does not have that effect but nonetheless renders the right to residence a significantly less valuable or enjoyable one.

Finally, Mr Drabble prays in aid certain observations of Professor Gareth Davies from Amsterdam University who has written a paper entitled “The family rights of European children: expulsion of non-European parents” which discusses Zambrano in considerable detail. It includes a number of passages supporting Mr Drabble’s argument that the position in EU law is at least fluid, that the current state of the law is not entirely coherent, and that the precise scope of the Zambrano principle remains uncertain. In particular Mr Drabble cites the following passage from the paper:

“There are two sets of rights at issue where the parent of a child citizen is expelled. There are family rights, and citizenship rights. To reason to a conclusion as if once it is clear that the child will not necessarily follow the expelled parent the case becomes one which is purely about family and Article 8 ECHR is to marginalize the importance of Union citizenship and the right to live in the EU. It treats this right as if it is digital – either you are there or you are not – which is naïve and implausible. All rights know degrees of interference, and certainly citizenship rights, where the possibility of limitations is expressly mentioned in the Treaty itself. A citizen may be deprived of his residence right, by measures forcing him to leave, but he may also see the quality of it diminished, by measures which make remaining painful, difficult, expensive, or uncomfortable.”

I agree with Mr Beal QC, counsel for the Secretary of State, that there is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the EU. If the EU citizen, be it child or wife, 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 is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci, but that is an entirely distinct area of protection.

In my view none of the authorities has engaged with the possibility that the doctrine might extend in the manner suggested by Mr Drabble. The actual formulation of the Zambrano principle by the Court, when read in a context where only the potential deprivation of the right to residence was in issue, do not in my view lend support to the argument that the Court was leaving open the possibility that the doctrine might apply more widely and loosely.

Nor do I accept that the other passages relied upon by Mr Drabble support his case. As to the observations in paragraph 49 of McCarthy, it is talking about the right to move and reside in another member state; it is well established that the right to free movement may indeed be infringed by action which impedes that right, albeit falling short of actually depriving the citizen of that right. It does not, however, follow that the same principle applies with respect to this particular right which is highly exceptional precisely because it does not require any exercise of the right to free movement.

Moreover, as the Upper Tribunal noted, the actual results in McCarthy and Dereci do not sit happily with the submissions now advanced by the appellants. In both those cases the removal of the husband or partner, who in Dereci was also the father, would inevitably mar the enjoyment of the right of residence of wife and children. Even if the non-EU national is not relied upon to provide financial support, typically there will be strong emotional and psychological ties within the family and separation will be likely significantly to rupture those ties, thereby diminishing the enjoyment of life of the family members who remain. Yet it is plainly not the case, as Dereci makes clear and Mr Drabble accepts, that this consequence would be sufficient to engage EU law. Furthermore, if Mr Drabble’s submission were correct, it would jar with the description of the Zambrano principle as applying only in exceptional situations, as the court in Dereci observed. The principle would regularly be engaged.

As to the submission that EU law might develop in that direction, I accept that it is a general principle of EU law that conduct which materially impedes the exercise of an EU right is in general forbidden by EU law in precisely the same way as deprivation of the right. But in my judgment it is necessary to focus on the nature of the right in issue and to decide what constitutes an impediment. The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano doctrine would apply and the EU citizen’s rights would have to be protected (save for the possibility of a proportionate deprivation of rights). Accordingly, to that extent that the focus is on protecting the substance of the right, that formulation of the principle already provides protection from certain interferences with the enjoyment of the right.

In my judgment, it is also highly pertinent that the CJEU has confirmed in Dereci (paras 67-68) that the fact that the right to family life is adversely affected, or that the presence of the non-EU national is desirable for economic reasons, will not of themselves constitute factors capable of triggering the Zambrano principle. In practice these are the most likely reasons why the right of residence would be rendered less beneficial or enjoyable. If these considerations do not engage this wider principle, it seems to me extremely difficult to identify precisely what will. What level of interference with the right would fall short of de facto compulsion and yet would constitute a form of interference which was more than simply the breakdown of family life or the fact that the EU citizens are financially disadvantaged by the removal of the non EU national family member? The scope for this right to bite would be extremely narrow and in my judgment there would be very real uncertainty as to the nature and scope of the doctrine. That legal uncertainty would itself be inconsistent with fundamental principles of EU law. I do not accept that the language of the CJEU in Dereci is deliberately seeking to leave open this grey area where Zambrano may bite.

I do not accept that the recognition in Dereci that Article 7 of the Charter on Fundamental Freedoms may apply assists his case, although I accept that it is not entirely clear why that passage is included in the judgment. It could be that the Court was recognising that the deprivation of the right might be appropriate and proportional in some circumstances; or, as Professor Davies’ paper suggests, the Court might have been envisaging that Article 7 could be relevant to the question whether the EU citizen was in fact compelled to follow the non-EU citizen out of the territory of the EU. I do not think that the Court was at that point in its judgment envisaging that Article 7 could be relevant to a situation which it had simply not in terms addressed at all.

I recognise that Mr Drabble does get support from Professor Davies. But I mean no disrespect to a stimulating and thoughtful paper when I say that it is very much academic speculation as to where the doctrine might eventually go. I agree that it can be a difficult to predict with any real confidence precisely how EU law will develop in future; it would be foolish to discount the possibility that fuller protection might eventually be given to the citizen’s right of residence than is currently conferred. But in the current state of EU law, in my view the position is acte clair. The appellants are seeking to extend the Zambrano doctrine beyond its legitimate limits. Indeed, Professor Davies himself says that the move from forced departure to disproportionate interference does not match what the Court currently says. Given that the Court in Dereci very recently chose not to extend the doctrine in this way, or even to adopt the answer of the Advocate General which would have left open this possibility, I do not think that a reference at this point in the development of the jurisprudence is justified. Moreover, I think that there are real difficulties with Professor Davies’ analysis, as the law stands, particularly the observations I have made in paragraphs 66 and 67 above.

This has not been pursued particularly enthusiastically by either appellant, and in my judgment, for good reason.

In AB there are a number of grounds on which the appellant seeks to challenge the Article 8 analysis. First, it is contended that the Upper Tribunal failed properly to apply the guidance in ZH (Tanzania), which requires the interests of the children to be treated as a primary consideration. Judge Blake in fact referred specifically to that decision and there is simply no proper basis to assume that he, or indeed the Upper Tribunal, failed to give it proper regard. Moreover, Judge Blake referred back to DIJ Lewis’s judgment which gave a full account of the family circumstances. I have no doubt that he had those interests firmly in mind. It is trite law that the welfare of the children is not decisive and particularly not so in cases where serious criminal offences have been committed, as here.

It is also contended that the Upper Tribunal wrongly adopted an “exceptionality” requirement. The House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11 [2007] 2 AC 167 at para 20 per Lord Bingham expressly stated that it would be wrong to suggest that a first tier tribunal would be entitled to conclude that Article 8 would prevail over the need to deport in accordance with the Immigration Rules only “in exceptional circumstances”.

In the Upper Tribunal’s judgment it referred to the case of Nunez v Norway [2011] ECHR 1047 in which the Strasbourg court stated that exceptional circumstances were required before respect for family life which was established after illegal entry, with no right to remain, would make removal incompatible with Article 8. As Mr Beal points out that is not saying that Article 8 can only exceptionally trump the justification for deportation. The Upper Tribunal looked at the material factors but did conclude, in accordance with Strasbourg case law and as it was entitled to do, that the weight to be given to family life was less significant in these circumstances.

In my judgment, there was a very strong case for the First Tier Tribunal reaching the conclusion it did. There is a complaint that its decision was not a structured one, but as the Upper Tribunal noted, the First Tier Tribunal referred to and approved the earlier decision of DIJ Lewis which expressly followed the Razgar analysis, and one has to look at both judgments in order fully to understand the determination of Judge Blake.

Given that the appellant was at all times an illegal entrant and had committed a serious criminal offence, there was every justification for the conclusion which has in fact been made by all judges who considered this below, namely that the deportation of this appellant would not infringe the Article 8 rights either of himself or any member of his family.

In my view, the appellant is simply asking this court to re-assess the weight to be given to various factors. That is not its function, and in any event I do not see how the courts below could sensibly have reached any different conclusion.

In the case of DH, he too has not lawfully been present in the UK since his grant for indefinite leave to remain initially had been procured by deception. Moreover, his relationship with his partner had been formed when his precarious immigration status was known to her. The Upper Tribunal focused on this appellant’s relationship with his children. It cannot possibly be said that the Upper Tribunal failed to have proper regard to the interests of those children. They recognised in terms that they were the innocent victims of his conduct and would suffer if he were to be deported. The Upper Tribunal also noted that the nature of the offence, albeit an extremely serious one, was not conclusive against the appellant but it was a factor of considerable weight.

Again, in substance, the attempt to re-open this conclusion is in my view really asking this court to re-assess the proportionality balance. The approach of the courts below was appropriate and the balancing exercise was conducted fully and fairly. Indeed, I find it very difficult to see how the courts below could have come to any other conclusion.

One particular point advanced in relation to the Article 8 aspect of DH’s case is the submission that the Upper Tribunal had been wrong to give consideration to the fact that DH would be able to apply for revocation of the deportation order at some point in the future. I would certainly accept that that would not be a factor that should weigh heavily in the balance, but I do not accept that it is entirely irrelevant and the Upper Tribunal was entitled to bear it in mind. In any event it is inconceivable, in my view, that the Article 8 conclusion would have been any different even if that factor had been ignored.

For these reasons therefore I would reject both the EU and the Article 8 grounds of appeal in relation to each of these cases.

I agree.

I also agree.