FZ (China) v Secretary of State for the Home Department

This appeal raises the question of whether FZ, a Chinese national, who has been convicted and given a sentence of eight year’s imprisonment has a right to remain in the United Kingdom without being automatically deported pursuant to the mandatory provision of section 32(5) of the UK Borders Act 2007 which I will call, “The Act”.

Section 32(5) is subject to section 33 which provides for various exceptions to automatic deportation. The relevant exception in this case is exception 3 contained in section 33(4):

“... where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the [EU] treaties”.

Article 20 of the Treaty on the functioning of the European Union, the TFEU provides that every person holding the nationality of a member state of the Union shall be a citizen of the Union and have the right to move and reside freely within the member states. FZ is not himself a person who is a citizen of the United Kingdom but his wife and daughter are such citizens. He claims he has a derivative right to reside in the United Kingdom because of what Mr Macdonald QC on his behalf calls the “Zambrano principle”.

The facts of the case can be shortly stated. FZ is a Chinese national, he was born on 16 July 1968, he entered the United Kingdom unlawfully and by unknown means around 1995. He unsuccessfully claimed asylum which was refused on 6 August 2000 but he was granted leave to remain on an exceptional basis until 6 August 2004. On 25 September 2000 he married a lady whom I shall call, “Mrs FZ”, they had a daughter, “B” who was born on 29 January 2003. On 15 July 2005, FZ, his wife and their daughter were granted indefinite leave to remain following applications made on 6 July 2004. In August 2006 Mrs FZ and her daughter, but not FZ himself, were naturalised as British citizens. Mrs FZ’s son and daughter by another marriage were granted indefinite leave to enter the United Kingdom on 15 August 2007 and are now adults or nearly adults.

On 14 May 2008, FZ was convicted of people trafficking and controlling prostitution for gain and sentenced at Worcester Crown Court to 8 years and 42 months’ imprisonment to run concurrently. He had pleaded not guilty. His Honour Judge McCreath in the course of his sentencing remarks called FZ a senior manager in what was, in effect, a business and he continued:

“The nature of this business was this. That for the most part, although not in every single case, I accept, women were brought illegally into this country not, I accept, by you, but by others. When those others had made them work off their debts by prostitution, they were then passed to you in circumstances where I am abundantly satisfied you must have known of that background. They then became the raw material of your business, effectively imprisoned in brothels which they left only to be moved to another. They had nowhere to escape to and were afraid of what would happen if ever they did. The fees which they received for their services as prostitutes you took half of. There were at least 20 such women and probably a good deal more. This case demonstrates real exploitation of women who were under effective coercion. These women may have volunteered for this, but this was no free life choice which any of them made. This was no more than an escape from poverty and once they came to this country, they were little more than slaves. This business that you were involved in was on a substantial scale. There were, I am satisfied, during the course of this conspiracy four such brothels in action and a fifth about to start. They were run on a commercial basis with newspaper advertising, websites and all the trappings of business. Not only were the prostitutes affected by that dreadful exploitation, so also the people who had the misfortunate to live near these brothels who were, many of them, disturbed merely by the fact of having a brothel near them, as any decent people would be, but were also disturbed by the unpleasant activity going on around them. I mean by that the slamming of car doors and the like day and night, by the prospect of having men knocking on their door, expecting their respectable home for a brothel and those in doubtless other ways having their home and their streets sullied. This in itself is a serious case and it is aggravated by its commercial nature which shows sophisticated planning and by its significant scale. Also by the extent to which these women were coerced and exploited and by the number of women who were involved by you in it. As I have said, and repeat, at least 20 of them.”

FZ was released from prison in 2011. During his imprisonment, Mrs FZ was the sole breadwinner for the family and earned money from a take away called, “The New Garden Take Away” in Barking. On 27 June 2008 and again in December 2009, the appellant was notified that he was liable for deportation under the Immigration Act 1971, section 3(5)(a). The Secretary of State subsequently served FZ with a deportation order of 11 January 2013 and a notice of decision to deport.

FZ appealed against this decision to the First Tier Tribunal. The grounds of appeal relied on Article 8 of the European Convention of Human Rights but also said that deportation would be a breach of Article 20 of the TFEU. That was not dealt with explicitly by the First Tier Tribunal, no doubt because there was no oral argument about it. The Tribunal applied, ZH (Tanzania) [2011] UK SE4 [2011] 2 AC 166 to the effect that a child’s interest as a British citizen to be brought up in the UK was a primary consideration. The FTT nevertheless concluded that removal of FZ was proportionate to the legitimate aim of deporting FZ as a foreign criminal despite that consideration.

FZ then appealed to the Upper Tribunal with the permission of designated First Tier Tribunal Judge McCarthy; FZ alleged that the First Tier Tribunal had failed to take into account the rights of the appellant’s daughter as a primary consideration, failed to have proper regard to the fact that she was a British citizen and failed to have regard to her best interests and therefore, erred in law. FZ’s skeleton argument also advanced an argument based on Article 20 of the TFEU and the Justice of the European Communities’ decision in Zambrano; that was identified under heading “Issue No. 6”. The Upper Tribunal noted at paragraph 19 that what was described as the 6^th issue in the appellant’s skeleton argument was not insisted upon by the advocate for the appellant in the course of his submissions to us. The Upper Tribunal found that the First Tier Tribunal judgment was detailed, well-constructed, well-reasoned and analysed the evidence before it fully. Its consideration of proportionality was unimpeachable; there was a pressing public interest for the removal of the appellant and had in mind the observations made in ZH (Tanzania) and the FTT was entitled to reach the view that the citizenship of the daughter and wife was not a trump card. It had taken into account the best interests of the child as the primary consideration in the light of all relevant factors, including her nationality. The Tribunal had weighed up the child’s best interest against the powerful public interest in favour of deportation and concluded that the latter prevailed against the former. It was entitled so to do. Proportionality had been fully considered with all relevant factors and no irrelevant factors taken into account. Accordingly, the Upper Tribunal dismissed FZ’s appeal.

Permission to appeal to the Court of Appeal was refused on the papers by Sir David Keane on 18 December 2013. Mr MacDonald renewed the application orally, as it happens, to me. I refused permission on grounds 1 and 3 of the grounds formulated by his advocate’s statement but I was persuaded to grant permission for his second ground of appeal which was that Mrs FZ had decided, or as it was put in the original skeleton argument at paragraph 28 had, “opted” to accompany her husband to China if he was deported and that therefore, her daughter would have no choice but to go too and would thus be deprived of her right to reside in the United Kingdom which would be an infringement of Article 20 of the TFEU.

This ground of appeal is, as I have said, founded on what Mr MacDonald calls the, “Zambrano principle”. Zambrano [2012] QB 265 was a case which decided that Mr Zambrano and his wife who had no rights of residence and thus no work permit in Belgium where they lived (and where their children were born and had acquired Belgium citizenship) should not be refused rights of residence and a work permit insofar as such refusal deprived the children, “of the genuine enjoyment and the substance of the rights attaching to the status of European Union Citizens”, see paragraph 45 of the judgment of the Court of Justice of the European Union.

Zambrano was followed and applied in Dereci v Bundesministerium für Inneres, case 256/11 decided on 15 November 2011 and reported at [2012] 1 CMLR 1311 in which a Turkish National had entered Austria illegally, married an Austrian national and fathered three children who were Austrian nationals. He applied for and was refused a residence permit. The Grand Chamber of the Court of Justice said, inter alia, and I read from paragraph 66 onwards:

“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.

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.

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 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.’

It thus appears that the application of the Zambrano principle is limited to exceptional cases and that a desire to preserve the family unit will not be enough for the principle to apply.

These cases do not deal with deportation of foreign criminals but Zambrano and Dereci have been relied on in England in support of an argument that foreign criminals should not be deported, because that would adversely affect the rights of citizenship of children born here. In Harrison v Secretary of State for the Home Department [2012] EWCA Civ. 1736, [2013] 2 CMLR 580, Elias LJ (with whom Pitchford LJ and Ward LJ agreed) analysed Zambrano and concluded that the reference in that case to action which deprived children of the substance of their rights under Article 20 of the TFEU meant that the right would be infringed, “if in practice, the children would 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”. (See paragraph 19 of the court’s decision). In later paragraphs of the judgment after an analysis of later authority Elias LJ called this, “De facto compulsion”, see paragraphs 25, 55, 61 and 67. There was no such de facto compulsion in Harrison and the appeals were dismissed.

The question is therefore whether the daughter, B, in this case would be de facto compelled to leave the United Kingdom if FZ were deported. Mr Macdonald submits that if Mrs FZ chooses to leave with FZ her daughter would, in practice, be compelled to also leave. He presents the case as a simple case of causation. There are or will be, he says, two causes of the child having to leave. One is the deportation order, the other is the decision of Mrs FZ to leave with her husband. The operative course, he submits, is the deportation order. Although in one sense Mrs FZ may choose to either stay with her daughter or to go with her husband, he submits it is not a free choice since any wife would wish to be with her husband and thus, her daughter would be deprived of her treaty rights.

I cannot agree with this submission. No doubt if Mrs FZ was herself compelled to leave, her daughter would be compelled to go with her, but there is no compulsion on Mrs FZ and in those circumstances, the child cannot be said to be compelled either. The First Tier Tribunal in paragraph 13 of its determination recorded the evidence of Mrs FZ that she owns the New Blossom Take Away in Barking and that she was the sole breadwinner after her husband’s arrest. Mrs FZ also said that she raised the money to pay the confiscation order made against Mr FZ and paid for the mortgage on the family home at 121 Cavendish Gardens in Essex. She was, of course, apart from her husband during his lengthy prison sentence and it is apparent from all the facts of the case that she is under no compulsion to go with FZ when he is deported.

In these circumstances, there is no room for the operation of the Zambrano principle. The situation in which the mother of a child has to decide whether to accompany her husband when he is required to leave the country where he has committed a criminal offence and decides she will in fact accompany him can hardly be categorised as exceptional. Her intention may be the laudable one preserving the family unit but on the authorities to which I have referred, that is not enough. The argument of causation espoused by Mr Macdonald is in my judgment misplaced. Moreover, it would be odd if the legitimacy of a deportation order made in respect of a foreign criminal should depend on the decision of that criminal’s wife whether or not to follow her husband when he leaves. If the father were the sole carer of the child with United Kingdom citizenship, the position might be different. In the present case, no doubt, both parents have, as Mr Macdonald says, parental responsibility but the mother is the carer of her daughter just as much as the father. Indeed, while FZ was in prison she was in practice the only carer.

This question of dependency was considered in O S and L v Maahanmuuttovirasto, cases C-356/11 and C-357/11 [2013] Fam. 203 decided in the Court of Justice of the European Union after the argument in Harrison but before judgment was delivered. In those cases, a third country national woman married a Finnish man and obtained a permanent residence permit in Finland. Each woman gave birth to a child who had Finnish nationality and had sole custody of that child after divorce. Each woman then married a third country national husband and had a second child who did not have Finnish nationality. Those husbands then applied for residence permits which were refused because neither of them had secure means of subsistence. The Finnish courts referred the question whether Article 20 of the treaty precluded a refusal of a Residence Permit on the basis of family reunification where the third party national sought to reside with his spouse who had sole custody of the child born of a previous marriage from this Union citizen. In the course of giving his opinion, Advocate General Bott accepted that it was possible the women would follow their spouses to the countries of origin but said this in paragraphs 42 to 44:

“... if they chose to leave ... the young children who are Union citizens would indeed have no other choice but to leave the territory of the Union and, consequently, lose the enjoyment of the rights conferred on them as citizens of the Union. However, in my view, departure from the territory of the Union would be freely decided by their mother for a reason linked to the preservation of family life and would not be imposed under the implementation of national legislation.

If we refer to the principles set out by the court in Dereci’s case, it does not seem to me that such a reason can suffice to constitute a breach of Article 20FEU. In that case the court gave a particularly restrictive interpretation of the criteria set out in Ruiz Zambrano’s case. In paragraph 68 of its analysis, it specified, in particular, concerning a Union citizen, that the mere fact that it might appear desirable to him, for economic reasons or in order to keep his family together, for a member of his family who is a third country national to obtain a residence permit 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.

The reasons linked to the departure of the citizen of the Union from its territory are therefore particularly limited in the case law of the court. They concern situations in which the Union citizen has no other choice but to follow the person concerned, whose right of residence has been refused, because he is in that person’s care and thus entirely dependent on that person to ensure his maintenance and provide for his own needs.”

This approach was endorsed by the court itself in paragraph 56 of its judgment where it said:

“... both the permanent right of residence of the mothers of the Union citizens concerned who are minors and the fact that the third party nationals for whom a right of residence is sought are not persons on whom those citizens are legally, financially or emotionally dependent must be taken into consideration when examining the question whether, as a result of the refusal of a right of residence, those citizens would be unable to exercise the substance of the rights conferred by their status. As the Advocate General observes in point 44 of his opinion, it is the relationship of dependency between the Union citizen who is a minor and the third country national who is refused a right of residence that is liable to jeopardise the effectiveness of Union citizenship, since it is that dependency that would lead to the Union citizen being obliged, in fact, to leave not only the territory of the Member State of which he is a national but also that of the European Union as a whole, as a consequence of such a refusal: see Ruiz Zambrano’s case, paras 43 and 45 and Dereci’s case, paras 65-67.”

Mr Macdonald submitted that the court had not endorsed paragraph 42 of the Advocate General’s opinion. It is true that the court only referred in terms to paragraph 44 of the Advocate General’s opinion, but that paragraph followed on from and built on paragraph 42. A reading of the judgment as a whole with its express reference to the relevant paragraphs of Dereci shows that the critical question is whether there is an entire dependency of the relevant child on the person who is refused a residence permit or who is being deported. That is not the position in this case.

Finally, I should add that the Zambrano principle has been put into effect in English domestic law by Regulation 15A (as amended) on the Immigration (European Economic Area) Regulations, 2006. However, since Mr Macdonald places no reliance on these regulations and it is agreed between the parties that Article 20 of the TFEU has direct effect, I need say no more about those regulations and I would dismiss this appeal.

I agree.

I also agree.