Robinson v Secretary of State for the Home Department

A third-country national whose residence is derived from a dependent Union citizen under article 20 of the Treaty on the Functioning of the European Union may be deported where their personal conduct constitutes a genuine, present and sufficiently serious threat affecting a fundamental interest of society, and deportation is proportionate.

The expression “exceptional circumstances” identifies an exception to the general protection conferred by the derivative right. It creates no additional threshold and does not require imperative grounds of public security. The decision-maker must assess dependency, the threat posed, private and family life, and the child’s best interests. A criminal record alone cannot establish the necessary threat.

The appellant, a Jamaican national and the primary carer of a British child, was made subject to a deportation order following her conviction for supplying cocaine. The First-tier Tribunal dismissed her appeal under article 8 of the European Convention on Human Rights. The Upper Tribunal allowed a further appeal on the mistaken basis that the derivative right recognised in Zambrano was absolute.

After later judgments of the Court of Justice established that the right was qualified, the Court of Appeal allowed the Secretary of State’s appeal and remitted the case to the Upper Tribunal: [2018] EWCA Civ 85. The Supreme Court granted permission solely on whether a Zambrano carer could be deported only where an additional requirement of “exceptional circumstances” was established.

1. Appeal dismissed unanimously. Lord Stephens, with whom Lady Black, Lord Lloyd-Jones, Lord Sales and Lord Burrows agreed, held that “exceptional circumstances” creates no additional hurdle before a Zambrano carer may be deported. It describes the fact that deportation is an exception to the general rule protecting a dependent Union citizen from being compelled to leave the territory of the Union.

2. A national authority must first determine whether the Union citizen and third-country national have a relationship of dependency such that refusal of residence would compel the Union citizen to leave the Union as a whole. Where a child is involved, the authority must identify the primary carer and assess the actual dependency. It must consider family life and treat the child’s best interests as a primary consideration.

3. If the derivative right arises, deportation may be justified only where the third-country national’s personal conduct constitutes a genuine, present and sufficiently serious threat affecting a fundamental interest of society or the host state. The threat cannot be inferred automatically from a criminal record alone. The nature and gravity of the offending, the person’s current danger to society, and the consequences for public policy or public security require individual assessment.

4. If the necessary threat exists, the authority must conduct a proportionality assessment. It must balance the nature and degree of the threat against the relevant fundamental rights, including respect for private and family life. For a child, particular attention must be paid to age, circumstances in the member state, health, economic and family situation, and the degree of dependency on the parent.

5. The Court of Justice deliberately declined to adopt the Advocate General’s proposed requirement of imperative grounds of public security. Its decisions permitted reliance on public policy as well as public security and repeatedly stated the applicable threat and proportionality requirements without adding either an imperative-grounds test or a separate exceptional-circumstances test.

6. The Court of Appeal’s order remitting the case to the Upper Tribunal for redetermination on the merits was maintained.

1. United Kingdom Supreme Court: The appellant’s appeal was dismissed unanimously. The order remitting the case to the Upper Tribunal was maintained: [2020] UKSC 53.

2. Court of Appeal: The Secretary of State’s appeal was allowed. The court held that “exceptional circumstances” imposed no additional requirement and remitted the case for a proportionality assessment: [2018] EWCA Civ 85; [2018] WLR 81.

3. Upper Tribunal: The appellant’s appeal was allowed on the erroneous basis that the Zambrano prohibition against removal was absolute. The tribunal also concluded, for completeness, that removal would not be disproportionate.

4. First-tier Tribunal: The appeal was dismissed because deportation was proportionate under article 8 of the European Convention on Human Rights.