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Supreme Court: no additional “exceptional circumstances” test in Zambrano deportation cases


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In the case of Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53 the Supreme Court has held that there is no “exceptional circumstances” test that applies in EU law to protect a non-EU national carer from deportation. The case involved a Jamaican woman who is the mother of a British citizen child, now aged 12. The woman was imprisoned for a Class A drug supply offence back in 2006 and deportation proceedings began in 2007. She was settled in the UK (i.e. she had indefinite leave to remain), as was her husband.

Deporting Zambrano carers

The case engages EU law because the Upper Tribunal found that Ms Robinson was what is known as a “Zambrano carer”, after the landmark Court of Justice of the European Union case of C-34/09 Ruis Zambrano. Basically, the tribunal held that the woman’s child would be forced to leave the EU if his mother was deported and because the child was an EU citizen (at the time anyway), EU law came into play, there were no exceptions to the Zambrano principle and the woman could not be deported. But that decision was in 2013, and in a series of cases since then the Court of Justice has held that a Zambrano carer can in fact be deported, and therefore also their child or children removed, in “exceptional circumstances”. The cases were:

  • C-304/14 Secretary of State for the Home Department v CS,
  • C-165/14 Rendon Marin, and
  • C-82/16 KA v Belgische Staat.

The Home Office successfully appealed to the Court of Appeal. That court held that, despite what was said by the Court of Justice, in reality no enhanced level of protection against deportation applied over and above the normal EU law principle of proportionality:

the reference to “exceptional circumstances” in the relevant case law of the CJEU was merely a reference to the fact that deportation of someone in the appellant’s position is a departure from the general rule that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the territory of the EU.

The case was sent back to the tribunal to have another go, but Ms Robinson appealed to the Supreme Court.

Today’s decision

The Supreme Court agreed with the Court of Appeal, with Lord Stephens giving the court’s sole judgment. There is no additional “exceptional circumstances” test which applies to protect a Zambrano carer from deportation or their charge from vicarious deportation. The applicable test, then, is one of EU law proportionality, which will include an assessment of the best interests of the affected child.

The Upper Tribunal will now have to decide whether it is proportionate to deport a settled woman for a drugs offence which attracted a sentence of two years and six months back in 2006, and in doing so force her now 12-year-old British child to leave the country with her.

As an immigration law aside, the obiter comments of Singh LJ in the Court of Appeal to the effect that the old Bouchereau case on public revulsion continues to apply, subject to certain qualifications, was not under appeal. It is hard to see how that case survived the coming into force of Article 27(2) of the Citizens’ Directive but apparently it did.

As a Brexit law aside, the Supreme Court records the legal status of EU law and the EEA Regulations 2016 in the United Kingdom as at the date of judgment: it all continues to apply, by virtue of sections 1A, 2 and 4 of the European Union (Withdrawal) Act 2018 as amended by the European Union (Withdrawal Agreement) Act 2020. However, Lord Stephens goes on, “the legal principles to be applied may change after 31 December 2020 at 11pm”.

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Colin Yeo

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.