ON APPEAL FROM the UPPER TRIBUNAL (Asylum & Immigration Chamber)
Mr Justice Blake and Upper Tribunal Judge Jordan (DH)
Mr Justice Blake and Upper Tribunal Judge Gill (AB)
IA/0288/2010 and IA/43128/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE PITCHFORD
| DAMION HARRISON (JAMAICA)
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|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr Richard Drabble QC and Mr Ranjiv Khubber (instructed by Joint Council for the Welfare of Immigrants) for the Appellant AB
Mr Kieron Beal QC (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 27 and 28 November 2012
Crown Copyright ©
Lord Justice Elias :
The state of the law before Zambrano.
"1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member states;
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder."
Article 21(1) TFEU in almost identical terms confers on every citizen of the Union
"the right to move and reside freely within the territory of the Member states, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect."
The decision in Zambrano.
"42. In those circumstances, art 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann's case (para 42)).
43. A refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.
44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.
45. Accordingly, the answer to the questions referred is that art 20 TFEU is to be interpreted as meaning that it precludes a member state from refusing a third country national upon which his minor children, who are European Union citizens, are dependent, a right of residence in the member state of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen."
Decisions after Zambrano.
"….art 20 TFEU must be interpreted to the effect that it does not apply to a Union citizen who is the spouse, parent or minor child of a national of a non-member country, where that Union citizen has never exercised his right to move freely between the member states and has always resided in the member state of which he is a national, in so far as the situation of that Union citizen is not accompanied by the application of national measures which have the effect of depriving him of the genuine enjoyment of the substance of the rights attaching to his status as a Union citizen or of impeding the exercise of his right to move and reside freely within the territory of the member states."(emphasis added.)
"65. Indeed, in the case leading to that judgment, the question arose as to whether a refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nations and reside and a refusal to grant such a person a work permit have such an effect. The court considered in particular that such a refusal would lead to a situation where those children, who are citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union (see Ruiz Zambrano's case (paras 43, 44)).
66. It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the member state of which he is a national but also the territory of the Union as a whole.
67. That criterion is specific in character inasmuch as it relates to situations in which, although subordinate legislation on the right of residence of third country nationals is not applicable, a right of residence may not, exceptionally, be refused to a third country national, who is a family member of a member state national, as the effectiveness of Union citizenship enjoyed by that national would otherwise be undermined.
68. Consequently, the mere fact that it might appear desirable to a national of a member state, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a member state to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.
69. That finding is, admittedly, without prejudice to the question whether, on the basis of other criteria, inter alia, by virtue of the right to the protection of family life, a right of residence cannot be refused. However, that question must be tackled in the framework of the provisions on the protection of fundamental rights which are applicable in each case."
"70. As a preliminary point, it must be observed that in so far as art 7 of the Charter of Fundamental Rights of the European Union (the Charter), concerning respect for private and family life, contains rights which correspond to rights guaranteed by art 8(1) of the ECHR, the meaning and scope of art 7 of the Charter are to be the same as those laid down by art 8(1) of the ECHR, as interpreted by the case law of the European Court of Human Rights (see McB v E Case C-400 / 10 PPU  All ER (EC) 379,  Fam 364 (para 53)).
71. However, it must be borne in mind that the provision of the Charter are, according to art 51(1) thereof, addressed to the member states only when they are implementing European Union law. Under art 51(2), the Charter does not extend the field of application of European Union law beyond the powers of the Union, and it does not establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Accordingly, the court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it (see McB's case (para 51); see also Criminal proceedings against Gueye Joined cases C-483 / 09 and C-1 / 10  1 CMLR 667 (para 69)).
72. Thus, in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in art 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of art 8(1) of the ECHR.
73. All the member states are, after all, parties to the ECHR which enshrines the right to respect for private and family life in art 8.
The Court then summarised its conclusion on the effect of EU law as follows (para74):
"In the light of the foregoing observations the answer to the first question is that European Union law and, in particular, its provisions on citizenship of the Union, must be interpreted as meaning that it does not preclude a member state from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the member state of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify."
The material facts of the two cases.
The decision of the First Tier Tribunal.
The decision of the Upper Tribunal.
The appeal to the Asylum and Immigration Tribunal.
"The Court of Appeal's decision in Lee v SSHD makes plain that separation may be the consequence of serious criminal conduct such as that engaged in by the appellant. A few months after lying to secure indefinite leave to remain he organised a very serious offence of supplying crack cocaine. The Secretary of State attaches particular importance to deterring drug offending by preventive measures such as deportation of those liable to it. So have the courts both in the United Kingdom and Strasbourg. The nature of the offence is not conclusive against the appellant but it is a consideration of considerable weight. The public interest requires us to emphasise that those who use deception to enter or remain in the United Kingdom and then commit very serious offences such as those considered here cannot expect to avoid deportation because they have fathered children who were born here. This is not offending by a young man who grew up here as a child and has lived here most of his live so it is not a Maslov case. Although we have applied the principle of proportionality and not exceptionality we consider that deportation is justified in support in of the legitimate aim on the facts of this appeal."
"…..Although the removal of the father would have adverse economic impact on all the families, as well as the interests of each child living in a household with its father, it cannot be said that either the children or their mothers will be required to leave with him. There is an analogy with the case of Mr Dereci who was found not to have a Zambrano right of residence. Economic reasons for maintaining family unity are not sufficient.
90. We recognise that the appellants have submitted by way of reply that according to the Advocate General's opinion an impairment of the exercise of the Treaty right of residence may suffice to engage the Zambrano principle. This was not how the Court answered the question, however, and in our judgment, if on the facts removal of the appellant will not require the children or spouse to follow because they have no capacity for exercising their Treaty rights independent of the person facing removal, what is being impaired is not the right to reside in the EU but the right to enjoy family life whilst so residing.……. "
The areas of common ground.
(1) The application of the Zambrano test requires a court to focus on the question whether as a matter of reality the EU citizen would be obliged to give up residence in the EU if the non EU national were to be removed from the EU.
(2) On the facts of these cases, there was no such de facto compulsion in either appeal.
(3) The question in issue, and on which the parties are divided, is whether the Zambrano principle can apply where an EU citizen is not forced, as a matter of substance, to follow the non EU national out of the EU, but where their continuing residence in the EU is affected in some sense because, for example, the quality of life is diminished. The appellants submit that it is at least arguable and not acte clair that the principle can apply in those circumstances. The Secretary of State submits that the case law is clear and consistent and is inconsistent with the appellant's submissions.
(4) If Zambrano does apply, the parties accept that the following issues are not acte clair:
a. Whether the state can ever justify refusing to grant to the non-EU national the right to reside even though the effect will be to deprive the EU citizen of his or her right of residence.
b. If the right is defeasible and an EU citizen may in principle be deprived of it on justified grounds, and the basis for that justification is the commission of criminal offences by the non EU national, whether it is legitimate, when applying the proportionality exercise, for the court to have regard to wider public interest considerations or whether the court can focus only on the personal situation of the individual.
The submissions on appeal.
"the national measure at issue in the main proceedings has the effect of depriving her of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen, or of impeding the exercise of her right to move and reside freely within the territory of the member states…."
"There are two sets of rights at issue where the parent of a child citizen is expelled. There are family rights, and citizenship rights. To reason to a conclusion as if once it is clear that the child will not necessarily follow the expelled parent the case becomes one which is purely about family and Article 8 ECHR is to marginalize the importance of Union citizenship and the right to live in the EU. It treats this right as if it is digital – either you are there or you are not – which is naïve and implausible. All rights know degrees of interference, and certainly citizenship rights, where the possibility of limitations is expressly mentioned in the Treaty itself. A citizen may be deprived of his residence right, by measures forcing him to leave, but he may also see the quality of it diminished, by measures which make remaining painful, difficult, expensive, or uncomfortable."
LORD JUSTICE PITCHFORD:
LORD JUSTICE WARD: