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

The derivative right of residence recognised by the Zambrano principle arises only where removal of a third-country national would, in practice, compel a Union citizen to leave the European Union. A reduction in the quality or enjoyment of the citizen’s residence, including disruption of family life or economic disadvantage, is insufficient.

Where EU law is not engaged, the consequences for family life fall to be assessed under article 8 of the European Convention on Human Rights. Children’s best interests are a primary consideration, but they are not decisive. Serious offending, deterrence, unlawful residence and the circumstances in which family life was established may outweigh those interests.

These conjoined appeals concerned third-country nationals facing deportation or exclusion from residence. Each had committed a serious criminal offence and had a British partner and British children who would remain in the United Kingdom.

The Upper Tribunal held that neither family would be compelled to leave the European Union if the appellant were removed. It also held that removal was proportionate under article 8 of the European Convention on Human Rights.

The appellants accepted that their families would not be compelled to leave. They contended that it was not acte clair whether the principle in Ruiz Zambrano extended to a diminished enjoyment of residence falling short of forced departure. They sought a reference to the Court of Justice and also maintained their article 8 challenges.

1. Both appeals dismissed. The scope of the Zambrano principle was acte clair, so no reference to the Court of Justice was justified. The principle applies only where refusal of residence to a third-country national would, as a matter of reality, compel a Union citizen to leave the territory of the European Union.

2. The right protected by article 20 of the Treaty on the Functioning of the European Union is the right to reside within Union territory. It is not a right to any particular quality of life or standard of living. Disruption of family life, emotional or psychological harm, and economic disadvantage do not engage the Zambrano principle unless their practical effect is to compel the Union citizen to leave.

3. The decisions in Ruiz Zambrano, McCarthy, Dereci and Iida established a narrow and exceptional doctrine. Dereci showed that the desirability of preserving family unity or avoiding economic disadvantage was insufficient. Its reference to article 7 of the Charter of Fundamental Rights of the European Union did not support a wider derivative right.

4. Where the Zambrano principle does not apply, EU law and the Charter are not engaged. Any interference with family life must instead be assessed under article 8 of the European Convention on Human Rights.

5. The tribunals had treated the children’s best interests as a primary consideration, consistently with ZH (Tanzania). Those interests were not decisive, particularly where the parent had committed a serious offence. In AB’s case, the tribunals were entitled to give reduced weight to family life established after unlawful entry and while he had no right to remain. Their reliance on Nunez did not impose a general exceptionality test contrary to Huang.

6. In DH’s case, the Upper Tribunal had fully and fairly balanced the children’s interests against deception, precarious immigration status, serious drug offending and the public interest in deterrence. The possibility of seeking future revocation of the deportation order carried little weight but was not irrelevant. The Court of Appeal would not re-assess the weight assigned to factors where the tribunals had adopted the correct legal approach.

1. Court of Appeal (Civil Division): Dismissed both appeals and upheld the Upper Tribunal’s decisions: [2012] EWCA Civ 1736.
2. Upper Tribunal (Asylum and Immigration Chamber)—DH: On a remittal following ZH (Tanzania), dismissed DH’s appeal against deportation. It held that removal was proportionate under article 8 and that the Zambrano principle did not apply.
3. Upper Tribunal (Asylum and Immigration Chamber)—AB: Dismissed AB’s appeal. It held that the First-tier Tribunal had wrongly treated the Citizenship Directive as applicable, but that this error did not affect the outcome. Neither Zambrano nor article 8 prevented removal.
4. First-tier Tribunal—AB: Dismissed AB’s appeal against the refusal of a residence card, although it erroneously treated the Citizenship Directive as applicable.
5. Asylum and Immigration Tribunal—DH: Dismissed DH’s asylum and deportation appeals. The asylum determination was not pursued further.