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

A third-country national derives a right of residence from a dependent Union citizen only where refusing residence or effecting deportation would compel that citizen, in practice, to leave the European Union as a whole. The principle applies exceptionally. A wish to preserve family unity does not establish the necessary compulsion.

For a minor Union citizen, the critical question is whether the child is entirely dependent on the person facing removal. A child is not compelled to leave where another parent, who has an independent right to remain and can care for the child, freely chooses to accompany the person being deported.

A Chinese national was made subject to automatic deportation after receiving an eight-year sentence for offences involving people trafficking and controlling prostitution for gain. His wife and daughter were British citizens. The First-tier Tribunal dismissed his appeal after finding that the public interest in deportation outweighed his daughter's best interests. The Upper Tribunal upheld that decision.

Permission to appeal was limited to whether deportation would infringe Article 20 of the Treaty on the Functioning of the European Union. The appellant argued that his wife intended to accompany him to China, leaving their daughter with no practical choice but to leave as well. The central issue was whether that consequence amounted to de facto compulsion under the Zambrano principle.

1. The appeal was dismissed unanimously. Article 20 of the Treaty on the Functioning of the European Union did not prevent the appellant's deportation. The transcript's formal order recorded that the application was dismissed.

2. The Zambrano principle is confined to exceptional situations in which a Union citizen would, in practice, be forced to leave the European Union as a whole if a third-country national family member were denied residence. A desire to keep the family together, even where understandable, is insufficient. That conclusion followed Zambrano [2012] QB 265, Dereci [2012] 1 CMLR 1311 and Harrison [2012] EWCA Civ. 1736.

3. The daughter would not be de facto compelled to leave the United Kingdom. Her mother was a British citizen and was under no legal or practical compulsion to leave. She had supported the family and cared for the daughter throughout the appellant's lengthy imprisonment. Her stated intention to accompany her husband was therefore a free decision connected with preserving family life, rather than a consequence imposed by the deportation order.

4. The critical question was whether the child was entirely dependent upon the third-country national facing removal. O S and L v Maahanmuuttovirasto [2013] Fam. 203 established the importance of legal, financial and emotional dependency. The daughter was not entirely dependent on her father because her mother possessed an independent right of residence and was an established carer. The position might differ where the person being deported is the Union-citizen child's sole carer.

5. Accordingly, the Article 20 exception in section 33(4) of the UK Borders Act 2007 did not displace the mandatory deportation provision in section 32(5). Regulation 15A of the Immigration (European Economic Area) Regulations 2006 required no further consideration because it was not relied upon and the parties agreed that Article 20 had direct effect.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2015] EWCA Civ 550.

2. Upper Tribunal (Immigration and Asylum Chamber): The appeal was dismissed. The Tribunal held that the First-tier Tribunal had properly assessed the child's best interests and had been entitled to find that the public interest in deportation prevailed.

3. First-tier Tribunal: The appeal against the deportation decision was dismissed. The Tribunal treated the British child's interests as a primary consideration but found deportation proportionate.