Deportation and the application of Zambrano

The European Court of Justice will soon make clear the basis on which Zambrano carers can be deported in answering questions referred to it by the Upper Tribunal (IAC) of the UK and Supreme Court of Spain. Advocate General Szpunar has now provided his opinion.

In the case of Zambrano, decided by the European Court of Justice, it was held that a member state could not remove a third country national if the effect of that removal would be that a citizen of the European Union would be required to leave the territory of the Union.

The principle in Zambrano has been interpreted very strictly. In order for the principle in Zambrano to be engaged, the EU citizen would have to be required to leave the EU; it would not be enough to show that he would choose to leave with family members or that he would remain in adverse circumstances.

Zambrano most frequently has application where a third country parent of a dependent British child has no leave to remain in the UK but, if she left the UK, the child would have no option but to leave with her. In such a case, it does not matter that the child has not travelled within the EU or is not exercising Treaty rights. However, it must be proved that the child would have no option but to travel with the parent out of the EU. If there is another parent or family member who can care for the child, the child would be considered to have an option to remain in the UK with that person. It has been held, however, that it would not be possible for the child to remain in the UK without a parent if the child would have to be placed into care. This principle is now reflected in the EEA Regulations which provide that Zambrano carers have ‘derivative rights’ under EEA law and can be granted Derivative Residence Cards.

The principle in Zambrano also has application in deportation cases. However, most of these cases have discussed whether the child would really be required to leave the UK. This may be because in many cases only one parent is liable to be deported and it is therefore open to the other parent to remain in the UK and look after the British child here. It has therefore been unclear what will happen in circumstances where the only parent will be deported or when both parents are liable to deportation.

Specifically, it has been unclear whether a true Zambrano carer has an absolute defence to deportation or whether the principles of the EEA Regulations should apply to Zambrano carers rather than the Immigration Rules regarding deportation.

The Upper tribunal therefore referred a question to the CJEU on this point. This is being considered together with a similar question referred by the Supreme Court of Spain.

The CJEU has not yet handed down a preliminary ruling on these questions. However, Advocate General Szpunar has now provided an opinion to the CJEU. His proposed answer to the questions referred by the UK and Spain is:

“It is, in principle, contrary to Article 20 TFEU for a Member State to expel from its territory to a non-member State a third country national who is the parent of a child who is a national of that Member State and of whom the parent has sole care and custody, when to do so would deprive the child who is a citizen of the Union of genuine enjoyment of the substance of his or her rights as a citizen of the Union. Nevertheless, in exceptional circumstances, a Member State may adopt such a measure, provided that it:

• Observes the principle of proportionality and is based on the personal conduct of the foreign national, which must constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society and
• Is based on imperative reason relating to public security

It is for the referring court to determine whether that is the position in the case before it.”

If the CJEU follows the opinion of the AG, it will be much more difficult to deport Zambrano carers than other third country nationals.

Exceptional circumstances

If the CJEU follows this opinion, deportation of Zambrano carers will occur only in ‘exceptional circumstances’ rather than ‘automatically’ as it does for third country nationals who receive a sentence of 12 months or more.

Personal Conduct

It is well established as a principle of EU law that an expulsion decision against an EU national must be made only on the basis of the personal conduct of the EU national. An important facet of this principle is that public revulsion towards an offence and consideration of the deterrent effect on other foreign nationals in the UK is not a relevant consideration in an EU case. Both of these considerations are relevant to the deportation of third country nationals. The fact that they cannot be taken into consideration in deciding whether to deport an EU national was re-affirmed by the Court of Appeal in Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245. If the AG’s opinion is adopted by the CJEU the Zambrano carer will benefit from this important difference between expulsion under EU law and the Immigration Rules.

Genuine, present and sufficiently serious threat

It is clear from the case-law that, in principle, a national of a Member State or a member of his family may not be expelled solely on the grounds of a past criminal conviction. A removal measure must be based on an individual examination of the particular case. Accordingly, the conduct of the person in question must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. If the AG’s opinion is followed, the risk of re-offending and the level of harm likely to be caused in the event of further offending will be highly relevant to a decision as to whether to deport a Zambrano carer.

Imperative Grounds of Public Security

If the CJEU agrees that a Zambrano carer should be deported only on ‘imperative grounds of public security’ Zambrano carers will benefit from a very high bar for deportation. It will, in many cases, be possible to argue that even a recidivist criminal who is likely to re-offend does not represent such a risk to public security that her deportation is imperative. The AG’s opinion regarding the case referred to the CJEU was:

“In the present case, given that the minor child who is a citizen of the Union might, as a consequence of the expulsion of his mother, temporarily have to leave the territory of the European Union altogether, it is appropriate, to my mind, that he should be accorded the enhanced protection implied by the term ‘imperative grounds of public security’. Accordingly, only imperative grounds of public security are capable of justifying the adoption of an expulsion order against CS if, as a consequence, her child would have to follow her.”

This is of particular importance because even many EU nationals are not entitled to this high level of protection. EU nationals benefit from the protection that they can be removed only on ‘imperative grounds of public security’ only after they have been residing in the UK for a continuous 10 year period (excluding time spent in prison). After acquiring a right to permanent residence, EU nationals may be removed on ‘serious grounds of public policy or public security’. It is therefore the opinion of the AG that the highest level of protection available under EU law should be provided to Zambrano carers. This reinforces the importance of the rights of citizens of the Union to remain within the territory of the Union.

Once the CJEU publishes its decision, it will be clear what level of protection Zambrano carers will receive. If the AG’s opinion is followed, deportation of Zambrano carers will be on fundamentally different principles from the deportation of other third country nations. They will be afforded very much greater protection if they can be deported only on principles of EU law.

Contact our London Immigration Lawyers

For advice and assistance in relation to deportation proceedings and the implications of the Zambrano judgment, contact our direct access immigration barristers on 0203 617 9173 or via our online enquiry form.