In two linked cases, CS v UK C-304/14 and Marin v Spain C-165/14, the Court of Justice of the European Union has ruled that Zambrano-like derived rights of residence under EU law are not automatically lost if a crime is committed. Instead, each case must be assessed on its merits and a judgment reached applying normal principles of EU law.

Case of CS

The first of the cases has proven particularly controversial as the claimant has been named in Parliament as the daughter in law of Abu Hamza, notorious Islamist extremist. She was herself jailed for 12 months for attempting to smuggle a mobile phone sim card during a prison visit. The pending case was highlighted by Brexit campaigners as an example of the overreach of EU law and its interference with national sovereignty.

CS’s son is a British citizen and therefore a citizen of the Union. If she was removed from the UK, her son would also in effect have to leave and would thus lose the genuine enjoyment of the substance of his rights as a citizen of the Union. Normally, the Zambrano case would mean that CS would be permitted to stay in the UK in order to protect her son’s rights. The question for the court was whether the criminal offending by CS changed anything.

The Home Office argued that committing a crime could deprive a person of their Zambrano right to remain and override the rights of the affected EU citizen. Ultimately, the court agreed:

In this context, it must be held that, where the expulsion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security, in view of the criminal offences committed by a third-country national who is the sole carer of children who are Union citizens, that decision could be consistent with EU law.

However, the court goes on to hold that Zambrano rights cannot be lost automatically on the basis solely of the criminal record of the person concerned. There has to be a case by case assessment applying the principle of proportionality and the best interests of the child and applying the traditional EU law approach to expulsion and exclusion decisions:

That assessment must therefore take account in particular of the personal conduct of the individual concerned, the length and legality of his residence on the territory of the Member State concerned, the nature and gravity of the offence committed, the extent to which the person concerned is currently a danger to society, the age of the child at issue and his state of health, as well as his economic and family situation.

The court also makes clear that the UK’s automatic deportation regime in the UK Borders Act 2007 is not compatible with this approach:

44 That legislation therefore seems to establish a systematic and automatic link between the criminal conviction of the person concerned and the expulsion measure applicable to him or, in any event, there is a presumption that the person concerned must be expelled from the United Kingdom.

45 However, as is clear from paragraphs 40 to 42 of the present judgment, the mere existence of a criminal record cannot, by itself, justify an expulsion decision which may deprive CS’s child of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen.It was already well established that EU rights cannot automatically be lost if a crime is committed but instead that each case must be decided on its own facts. The principle has now also been applied to Zambrano cases based on EU citizenship and derived rights of residence cases.

The court deciding such a case must consider how the conduct or criminal offence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or of the host Member State, which may justify deportation. To do so the court must assess:

(i) the extent to which the person’s criminal conduct is a danger to society and

(ii) any consequences which such conduct might have for the requirements of public policy or public security of the Member State concerned.

The extent of the child’s dependence on the parent is also a factor to be considered.

Providing all these principles are applied

a Member State may adopt an expulsion measure provided that it is founded on the personal conduct of that third-country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that Member State, and that it is based on consideration of the various interests involved, matters which are for the national court to determine.

Case of Marin

The second case, Marin, involved a refusal to issue a residence card as opposed to actual expulsion. Mr Marin was the sole carer parent of two children; a son who was a Spanish national and a daughter who was a Polish national through her mother. Mr Marin had received a nine month prison sentence suspended for two years. He made a residence card application and this was refused on the sole basis that he had a criminal record.

Mr Marin appealed, arguing the refusal to grant him a residence card would result in his removal from Spanish territory and, therefore, from the territory of the European Union, which the two minor children, his dependants, would leave as a consequence.

Interestingly, the reference to the CJEU raises two subsidiary points that have proven controversial in the UK:

1. The first is whether Zambrano rights apply where the child is a national of a different EU Member State; it might have been an answer to the Marin case to say that the father could move to Poland with his Polish child.

2. The second is whether refusal of a residence card should be regarded as forcing a person to leave, a link the tribunal refused to accept in the Amirteymour case when ousting its own jurisdiction yet again.

Also interestingly, Mr Marin had subsequently been granted a residence card. The CJEU asked the referring court whether the reference was still needed, and the court said that it was because there could be consequences beyond the grant of residence card itself

such as compensation for the loss of employment contracts, of social benefits or of social security contributions or even, as the case may be, conferral of the right to acquire Spanish nationality.

This is another pointer towards the potential for damages for breaches of EU law by Member States.

The Court first considers whether Article 21 and Directive 2004/38, the Citizens’ Directive, apply to the facts of the case. The Court considers in the abstract as it was for the referring court to decide whether the conditions were in fact met. In particular, it was for the national court to decide whether the child was self sufficient or the parent was dependent.

If the conditions were met, refusal of a residence permit on the sole and automatic ground of committing a criminal offence is held not to be permissible in EU law:

It follows that EU law precludes a limitation on the right of residence that is founded on grounds of a general preventive nature and ordered for the purpose of deterring other foreign nationals, in particular where that measure has been adopted automatically following a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that person represents for the requirements of public policy

The correct approach is to apply the normal principles of EU free movement law:

Thus, in order to determine whether an expulsion measure is proportionate to the legitimate aim pursued, in the present instance protection of the requirements of public policy or public security, account should be taken of the criteria set out in Article 28(1) of Directive 2004/38, namely how long the individual concerned has resided on the territory of the host Member State, his age, his state of health, his family and economic situation, his social and cultural integration into the host Member State and the extent of his links with his country of origin. The degree of gravity of the offence must also be taken into consideration in the context of the principle of proportionality.

The Court then moves on to consider whether Article 20 and Zambrano might apply and require that Mr Marin should have been issued with a residence card.
On the issue of whether the family should relocate to Poland, several Member States rather charmingly intervened in proceedings to say that they should. The CJEU held that this was a question for the national court to decide. However, Mr Marin’s submissions on this question are recorded as being that there were no family ties to Poland and neither he nor the children spoke Polish and the Court goes on to state it was “clear” this was capable of resulting in the children being deprived of the genuine enjoyment of their rights.

On the issue of the automatic refusal of Zambrano residence on the basis of a criminal record, the Court follows a similar approach as in the CS case, holding that refusal could be justified if founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security. However, such a conclusion

cannot be drawn automatically on the basis solely of the criminal record of the person concerned. It can result, where appropriate, only from a specific assessment by the referring court of all the current and relevant circumstances of the case, in the light of the principle of proportionality, of the child’s best interests and of the fundamental rights whose observance the Court ensures.

For a decision to comply with EU law, the personal conduct of the person concerned must be assessed as well as the person’s length and legality of residence, the nature and gravity of the offence committed, the extent to which the person is currently a danger to society, the age of the children and their state of health and their economic and family situation.

Conclusion

The two cases settle some further outstanding questions following on from the Zambrano case. Criminal offending can result in refusal of a Zambrano right of residence, but only if normal principles of EU free movement law are applied. Zambrano can apply where the child is a national of a different Member State, and absence of family ties or language might well be sufficient to rule out an expectation of relocation to that country.

The case also arguably further undermines the tribunal’s finding in Amirteymour that refusal of a residence document could not be equated with a requirement to leave the country.

Nevertheless, the exact scope of Zambrano remains unclear, in particular the extent to which the existence of an alternative carer of some sort might forestall Zambrano rights.