Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53

A Jamaican mother of a British child challenged her deportation, arguing her derivative Zambrano right of residence meant she could only be deported in 'exceptional circumstances'. The Supreme Court dismissed her appeal, holding no additional exceptionality hurdle applies beyond the established proportionality test.

Facts

The appellant, a Jamaican national born in 1975, entered the United Kingdom in 2002 and later obtained indefinite leave to remain following her marriage to a British citizen. In October 2006, she was convicted at Wood Green Crown Court of supplying a class A drug (cocaine) and sentenced to two years and six months’ imprisonment. The Secretary of State signed a deportation order against her in November 2007. In December 2008, she gave birth to a son, D, a British national and citizen of the Union, who has lived with her throughout his life. Following an application to revoke the deportation order, which was refused in August 2012, the appellant appealed, relying on both article 8 ECHR and the derivative right of residence under Ruiz Zambrano v Office national de l’emploi (Case C-34/09).

The First-tier Tribunal dismissed her article 8 appeal. The Upper Tribunal allowed her appeal, holding that the Zambrano right was absolute and that no proportionality exercise was required. Following the CJEU’s decisions in CS and Marín (2016), it became accepted that the Zambrano right was not absolute. The Court of Appeal remitted the case to the Upper Tribunal for a proportionality assessment, holding that ‘exceptional circumstances’ in paragraph 50 of CS did not import an additional hurdle.

Issues

The sole issue for the Supreme Court was whether a third-country national benefiting from the derivative Zambrano right of residence enjoys enhanced protection against deportation, such that she can be deported only in ‘exceptional circumstances’, or whether the phrase merely describes a departure from the general rule that Union citizens cannot be compelled to leave EU territory.

Arguments

Appellant

Mr Southey QC submitted that the use of the phrase ‘exceptional circumstances’ in CS at paragraph 50 demonstrated the weight to be attached to the interests of the Zambrano child in the proportionality balancing exercise. He argued the phrase could not merely connote a departure from the norm; rather, it implied that the interests of the Zambrano child must carry great weight capable of being outweighed only by particularly compelling reasons.

Respondent

Mr Blundell QC, relying on CS, Marín and KA, submitted that neither an ‘imperative grounds’ test nor any broader ‘exceptional circumstances’ test applied. On a proper textual analysis of CS, the single use of ‘exceptional circumstances’ denoted an exception to the usual application of the Zambrano principle.

Judgment

Lord Stephens (with whom Lady Black, Lord Lloyd-Jones, Lord Sales and Lord Burrows agreed) dismissed the appeal. He first traced the legal landscape, identifying that consideration of a Zambrano right falls within the ambit of EU law, such that articles 7 and 24(2) of the Charter of Fundamental Rights apply. He set out the three questions for a national court: (i) whether there is a relationship of dependency compelling the Union citizen to leave the territory of the Union; (ii) whether the third-country national’s conduct constitutes a genuine, present and sufficiently serious threat to a fundamental interest of society; and (iii) a balancing exercise observing the principle of proportionality, taking into account the best interests of any child.

On the critical textual question, Lord Stephens noted that Advocate General Szpunar in CS had proposed both ‘exceptional circumstances’ and ‘an imperative reason relating to public security’. The CJEU rejected the ‘imperative grounds’ formulation, which is consistent only with article 28(3) of Directive 2004/38/EC. Proceeding on the assumption that the Advocate General was proposing an additional ‘exceptional circumstances’ requirement, the Court held that the CJEU did not adopt that proposal.

Lord Stephens conducted a careful textual analysis of paragraphs 34–50 of CS, demonstrating that paragraph 50 is a summary of the preceding analysis. At paragraph 36, the CJEU referred to ‘an exception’, not ‘exceptional circumstances’. He further observed that the same analytical structure is replicated in Marín (paragraphs 81–88) and KA (paragraphs 85–97), neither of which contains the phrase ‘exceptional circumstances’ or any suggestion of an additional hurdle. He found it ‘inconceivable’ that the CJEU would have omitted any reference to such an additional test on three occasions had it applied.

Accordingly, the Court of Appeal’s conclusion was upheld: ‘exceptional circumstances’ simply means that deportation is an exception to the general rule that an EU citizen cannot be compelled to leave EU territory, and does not import any additional requirement.

Implications

The decision clarifies that, where a third-country national is a Zambrano carer of a dependent Union citizen, deportation may be justified where the established test is met: namely, that the individual’s personal conduct represents a genuine, present and sufficiently serious threat affecting a fundamental interest of society, with the decision being proportionate and having regard to the child’s best interests under article 24(2) of the Charter. No separate ‘exceptional circumstances’ threshold need be surmounted.

The judgment is significant for immigration practitioners advising foreign criminals with dependent British-citizen children, and for the Home Office in framing deportation decisions. It aligns domestic interpretation with the CJEU’s case law in Zambrano, CS, Marín and KA, and confirms the three-stage analytical framework national courts must follow. The Court also noted that, following the end of the implementation period on 31 December 2020, the legal principles applicable may change, so the judgment’s prospective reach is qualified by the United Kingdom’s withdrawal from the EU. The appeal was confined to ground one only; issues relating to the evidential basis for deportation and to remittal were not before the Court.

Verdict: Appeal dismissed. The Court of Appeal’s order remitting the case to the Upper Tribunal for redetermination on the merits was maintained. The phrase ‘exceptional circumstances’ in the CJEU’s Zambrano jurisprudence does not import an additional hurdle beyond the established proportionality test.

Source: Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53