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

A derivative right of residence arising from a child’s EU citizenship is not absolute. A primary carer may be expelled only following an individual and proportionate assessment establishing that the carer’s personal conduct constitutes a genuine, present and sufficiently serious threat to a fundamental interest of society. The child’s best interests and the rights to private and family life must receive proper weight.

“Exceptional circumstances” describes this exception to the general rule. It creates no additional legal hurdle. Past conduct alone may establish the necessary present threat in an extreme case involving conduct that causes deep public revulsion, but only the most heinous offending is likely to suffice.

The Secretary of State appealed from an Upper Tribunal decision allowing an appeal against the refusal to revoke a deportation order. The respondent, a Jamaican national and the mother of a British child, had received 30 months’ imprisonment for supplying cocaine.

The Upper Tribunal treated the principle derived from EU citizenship in Zambrano as an absolute prohibition on removal and did not undertake a proportionality assessment. Following subsequent CJEU judgments, the respondent accepted that this was legally erroneous but contended that the errors were immaterial.

The principal questions were whether the Court of Appeal should conduct the proportionality assessment itself, the test governing expulsion of a primary carer with a derivative right of residence, the continuing effect of Bouchereau, and the relevance of rehabilitation legislation.

1. Appeal allowed and case remitted. The Upper Tribunal’s errors were material. An error of law is immaterial only where the same outcome was inevitable. The Upper Tribunal had undertaken no EU-law proportionality assessment, and the Court of Appeal could not properly perform that fact-sensitive exercise without current evidence, particularly evidence concerning the child’s circumstances. The case was remitted to the Upper Tribunal for redetermination.

2. Article 20 of the Treaty on the Functioning of the European Union generally precludes expulsion of a third-country national where that would compel a dependent EU-citizen child to leave the Union. The protection is not absolute. Expulsion is permissible where an individual assessment establishes that the carer’s personal conduct constitutes a genuine, present and sufficiently serious threat adversely affecting a fundamental interest of society.

3. The assessment must consider the carer’s conduct, the length and legality of residence, the nature and gravity of the offence, the degree of current danger, and the child’s age, health, economic circumstances and family circumstances. The decision must respect proportionality, private and family life, and the child’s best interests. A criminal record cannot by itself produce the conclusion automatically.

4. The expression “exceptional circumstances” adds no freestanding requirement. It summarises the limited exception to the general protection against being compelled to leave the EU. Nor does the stricter requirement of “imperative grounds of public security” in article 28(3) of Directive 2004/38/EC form part of the test governing the derivative right.

5. Bouchereau remained binding and was consistent with the later CJEU authorities. Past conduct alone can exceptionally constitute a present threat to the requirements of public policy where it causes deep public revulsion. This is confined to very extreme conduct, exemplified by grave sexual or violent offences against young children. The respondent’s offence, although serious, was not within that category.

6. The Rehabilitation of Offenders Act 1974 had no direct application because section 56A of the UK Borders Act 2007 disapplies the relevant protections in proceedings concerning immigration decisions.

• Court of Appeal (Civil Division): By [2018] EWCA Civ 85, unanimously allowed the Secretary of State’s appeal and remitted the case to the Upper Tribunal for redetermination.
• Upper Tribunal (Immigration and Asylum Chamber): On 23 August 2013, set aside the First-tier Tribunal’s determination, remade the decision and allowed the respondent’s appeal against the refusal to revoke the deportation order.
• First-tier Tribunal: By a determination promulgated on 7 December 2012, dismissed the respondent’s appeal against the Secretary of State’s refusal to revoke the deportation order.