Let op: de overkant van de plas had niet de Terugkeerrichtlijn ondertekend. Nou is de vraag of die - omdat hij niet geldt voor EU onderdanen voor Chavez- verblijfsgerechtigden wel geldt maar dat is een andere vraag. In deze uitspraak worden een aantal interessante aspecten van Chavez gecombineerd met de lijn uit de Burgerschapsrichtlijn.
Robinson (Jamaica) (Appellant) v Secretary of State for the Home Department (Respondent)
(a) Union citizenship and the right to move and reside freely
31. Article
20(1)FEU establishes Union citizenship and provides that “Every person
holding the nationality of a member state” is a citizen of the Union.
Under article 20(2)(a)FEU, citizens of the Union have “the right to move
and reside freely within the territory of the member states”. Article
21(1)FEU also provides that “Every citizen of the Union shall have the
right to move and reside freely within the territory of the member
states”. This right is not absolute but is “subject to the limitations
and conditions laid down in the Treaties and by the measures adopted to
give them effect”. The significance of citizenship of the Union is
apparent from 
Zambrano
at para 41 and KA
at para 47 in that “citizenship of the European Union is intended to be
the fundamental status of nationals of the member states”. The CJEU
confirmed at para 48 of KA that Union citizenship conferred “a
primary and individual right to move and reside freely within the
territory of the member states” but continued that this was not absolute
as it was “subject to the limitations and restrictions laid down by the
Treaty and the measures adopted for their implementation”.
(b) Parliament and Council Directive 2004/38/EC
32. On
29 April 2004 the Parliament and Council of the European Union adopted
Parliament and Council Directive 2004/38/EC of 29 April 2004 on the
right of citizens of the Union and their family members to move and
reside freely within the territory of member states (OJ 2004 L158, p 77)
(“the Directive”). The Directive lays down the conditions surrounding
the exercise of the right of free movement and residence within EU
territory, the right of permanent residence and the limits placed on
those rights. Under the rubric of “Beneficiaries” article 3(1) provides
that the Directive applies to all Union citizens who move to or reside
in a member state (the host member state) other than that of which they
are a national and to their family members who accompany or join them.
Accordingly, the Directive does not apply in this case as the only Union
citizen is D and he has not moved to or resided in a member state other
than that of which he is a national, see Zambrano at para 39, CS at para 22 and Marín
at para 40. In so far as D is not covered by the concept of
“beneficiary” for the purposes of article 3(1) of the Directive, a
member of his family is not covered by that concept either, given that
the rights conferred by that Directive on the family members of a
beneficiary of the Directive are not autonomous rights of those family
members, but derived rights, acquired through their status as members of
the beneficiary’s family: see McCarthy v Secretary of State for the Home Department (Case C-434/09) EU:C:2011:277; [2011] ECR I-3375; [2011] All ER (EC) 729,
para 42. However, both articles 27 and 28 of the Directive are relevant
as the CJEU has used some but not all of the language in those articles
in relation to the limitation on the Zambrano derived right of residence under article 20FEU.
34. Article 27 of the Directive under the rubric “General principles” and in so far as relevant provides:
“1. Subject to the provisions of this Chapter, member states may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.” (Emphasis added)
The CJEU has incorporated into the limitation on the Zambrano
derived right of residence many parts of article 27, including those
parts to which I have added emphasis. In relation to the grounds of
“public policy” and “public security” see Marín at para 81, CS at para 36 and KA at para 90. In relation to the requirement to comply with the principle of proportionality see Marín at para 85, CS at para 41 and KA
at paras 93 and 97. In relation to the requirement that the conduct
must represent “a genuine, present and sufficiently serious threat
affecting one of the fundamental interests of society” see Marín at para 84, CS at para 40 and KA at para 92.
35. Article 28(1) of the Directive under the rubric “Protection against expulsion” provides
“Before taking an expulsion decision on grounds of public policy or public security, the host member state shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host member state and the extent of his/her links with the country of origin.”
Again, the CJEU has incorporated into the limitation on the Zambrano
derived right of residence the language of article 28(1). In relation
to the requirement to take into account “considerations such as how long
the individual concerned has resided on its territory, his/her age,
state of health” (etc) see Marín at para 86, CS at para 42 and KA
at para 94. As expected given the context of both a crime committed by
the TCN parent and the interests of children, the list of factors
identified by the CJEU as “in particular” to be taken into account
include factors not mentioned in article 28(1), such as 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 children at
issue and their state of health, as well as their economic and family
situation. The CJEU also referred to the legality of the residence of
the TCN parent as a relevant factor, which is not specifically mentioned
in article 28(1).
36. Article 28(2) and (3) provides:
“2. The host member state may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by member states, if they:
(a) have resided in the host member state for the previous ten years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989 [‘the UNCRC’].”
The CJEU has not incorporated into the limitation on the Zambrano
derived right of residence the parts of article 28(2) and (3) to which I
have added emphasis. However, in relation to the UNCRC the Zambrano
derived right of residence is within the ambit of EU law so that
article 24(2) of the Charter applies which provides that “In all actions
relating to children, whether taken by public authorities or private
institutions, the child’s best interests must be a primary
consideration”. Furthermore, article 7 of the Charter which provides for
the right to respect for private and family life must be read in
conjunction with the obligation to take into consideration the child’s
best interests, recognised in article 24(2) of the Charter, see Marín at paras 66 and 81.
37. In
considering article 28(3) it should be recalled that the Directive does
not apply in this case. However even if the Directive did apply D is
not the individual subject to the expulsion decision so that article
28(3) would not be engaged. It is correct that the effective result of
the expulsion of D’s Zambrano
carer is that D also is expelled. However, the consequences are
different as between D and a minor expelled under article 28(3). D is
entitled to return to the territory of the Union at any time whilst a
minor expelled under article 28(3) is restricted to submitting an
application under article 32 after a reasonable period, depending on the
circumstances, and in any event after three years from enforcement of
the final exclusion order by putting forward arguments to establish that
there has been a material change in the circumstances which justified
the decision ordering their exclusion. It is then for the member state
concerned to reach a decision on this application. Furthermore, a minor
expelled under article 28(3) has no right of entry to the territory of
the member state concerned while their application under article 32 is
being considered.
(c) Implementation of the Directive into domestic law
38. The
Directive was implemented into domestic law by the Immigration
(European Economic Area) Regulations 2006 (SI 2006/1003) (“the 2006
Regulations”). Those Regulations were amended on 16 July 2012 to give
effect to a number of derivative rights of residence in EU law and to
include an associated power of removal for persons enjoying such rights,
where removal would be “conducive to the public good”. The 2006
Regulations were further amended on 8 November 2012 to make wider
provision reflecting CJEU case law, as then embodied in the Zambrano
decision, based, as it was, on article 20FEU and to apply the
“conducive to the public good” removal provision to such persons. The
2006 Regulations have since been replaced by new Regulations made in
2016 (“the 2016 Regulations”). However, it was the 2006 Regulations that
applied at the time of the impugned decision (see paragraph 5 of
Schedule 6 to the 2016 Regulations). The 2006 Regulations must, to the
extent possible, be interpreted to ensure conformity with article 20FEU.
If, in its case law since the Zambrano
decision, the CJEU has interpreted article 20FEU as requiring
“exceptional circumstances” as an additional requirement, then national
courts must strive to interpret the 2006 Regulations on that basis in
accordance with the Marleasing principle, see Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) EU:C:1990:395; [1990] ECR I-4135; [1992] 1 CMLR 305, para 13 and Pfeiffer v Deutsches Rotes Kreuz Kreisverband Waldshut eV (Joined Cases C-397/01 and C-403/01) EU:C:2004:584; [2005] ICR 1307; [2004] ECR I-8835; [2005] 1 CMLR 44,
para 115. So, the focus of this appeal returns to the decisions of the
CJEU in order to determine what test is to be applied in order to accord
with CJEU’s case law.
(d) The Zambrano right of residence
39. The CJEU’s ruling in Zambrano is the landmark decision. Mr Ruiz Zambrano
and his wife, Mrs Moreno Lopez, were both nationals of Colombia. While
they were living in Belgium Mrs Moreno Lopez gave birth to two children,
who acquired Belgian nationality by operation of Belgian law.
Accordingly, both children were also citizens of the EU and their
parents were TCN parents. The two children did not at any stage exercise
their right to move freely within the EU but remained in Belgium with
their parents. Mr Zambrano
applied for unemployment benefit. That application was rejected on the
ground that, since he had never held a work permit in Belgium, he did
not have the requisite qualifying period as required by national
legislation governing the residence and employment of foreign workers.
The Employment Tribunal in Belgium made a reference to the CJEU which
held that article 20FEU is to be interpreted as precluding a member
state from refusing a TCN on whom 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 TCN, 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.
(e) The Zambrano right of residence is a derivative right
(f) The consideration of a Zambrano right of residence falls within the ambit of European Union law
41. Consideration of whether there is a Zambrano
derived right of residence falls within the ambit of EU law.
Accordingly, account must be taken of the right to respect for private
and family life, as laid down in article 7 of the Charter, an article
which, must be read in conjunction with the obligation to take into
consideration the child’s best interests, recognised in article 24(2) of
the Charter, see Marín at para 81.
(g) The very specific situations giving rise to the Zambrano derived right of residence
42. The “very specific situations” giving rise to this derived right of residence are set out in Zambrano at paras 43 and 44, in Chavez-Vilchez v Raad van bestuur van de Sociale verzekeringsbank (Case C-133/15) EU:C:2017:354; [2018] QB 103; [2017] 3 CMLR 35 at para 63 and most recently in KA at paras 51 and 52 as follows:
“51. …, a right of residence must nevertheless be granted to a third-country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the EU as a whole, thus depriving him of the genuine enjoyment of the substance of the rights conferred by that status …
52. However, a refusal to grant a right of residence to a third-country national is liable to undermine the effectiveness of Union citizenship only if there exists, between that third-country national and the Union citizen who is a family member, a relationship of dependency of such a nature that it would lead to the Union citizen being compelled to accompany the third-country national concerned and to leave the territory of the EU as a whole …”
43. The requirement of being compelled to leave the territory of the EU as a whole as opposed to being compelled to leave the territory of the member state was specifically referred to in the decision of the CJEU in Dereci v Bundesministerium für Inneres (Case C-256/11) EU:C:2011:734; [2011] ECR I-11315; [2012] All ER (EC) 373; [2012] 1 CMLR 45. The CJEU stated at para 66 of its judgment that the criterion “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”.
(h) The first question to be addressed by the national court
44. On this basis the first question to be addressed in determining whether there is a Zambrano
derived right of residence is whether there is a relationship of
dependency of such a nature that it would lead to the Union citizen
being compelled to accompany the TCN concerned and to leave the
territory of the Union as a whole. In determining that question the CJEU
set out at para 71 of KA the factors to be taken into account. The CJEU stated:
“More particularly, in order to assess the risk that a particular child, who is a Union citizen, might be compelled to leave the territory of the EU and thereby be deprived of the genuine enjoyment of the substance of the rights conferred on him by article 20 TFEU if the child’s third-country national parent were to be refused a right of residence in the member state concerned, it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in article 7 of the Charter, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in article 24(2) of the Charter (Chavez-Vilchez [2017] 3 CMLR 35, para 70).”
(i) The second question to be addressed by the national court
(j) The third question to be addressed by the national court
46. If there is such a threat then the national court carries out an exercise balancing, on the one hand, the nature and degree of that threat which leads to the legitimate aim of safeguarding public order or public security. On the other hand, the national court has to take account of the fundamental rights whose observance the CJEU ensures, in particular the right to respect for private and family life, as laid down in article 7 of the Charter and to ensure that the principle of proportionality is observed. In a case involving children account is to be taken of the child’s best interests when weighing up the interests involved. Particular attention must be paid to his age, his situation in the member state concerned and the extent to which he is dependent on the parent: see CS at paras 48-49.
VI Whether exceptional circumstances need to be established before a Zambrano style='font-style:normal'> carer can be deported
(a) The parties’ submissions
47. On
behalf of the appellant Mr Southey submitted that “the use of the
phrase ‘exceptional circumstances’ demonstrates the weight to be
attached to the interests of the Zambrano
child when conducting a proportionality balancing exercise.” He also
submitted that “the use of the phrase ‘exceptional circumstances’ in CS at para 50 cannot merely connote a departure from the norm” but rather that “it implies that the interests of the Zambrano child must carry great weight that can only be outweighed by particularly compelling reasons.”
48. On behalf of the Secretary of State Mr Blundell relied on the CJEU decisions in CS, Marín and KA
in order to submit that the “imperative grounds” test does not apply,
and nor does any broader “exceptional circumstances” test. He submitted
that on a proper textual analysis of the judgment in CS the single use of the phrase “exceptional circumstances” was to be read as an exception to the usual application of the Zambrano principle.
(b) Rejection by the CJEU of “imperative grounds of public security”
“In the present case, given that the minor child who is a citizen of the Union might, as a consequence of the expulsion of his mother, temporarily have to leave the territory of the European Union altogether, it is appropriate, to my mind, that he should be accorded the enhanced protection implied by the term ‘imperative grounds of public security’. Accordingly, only imperative grounds of public security are capable of justifying the adoption of an expulsion order against (CS) if, as a consequence, her child would have to follow her.” (Emphasis added)
In this paragraph he did not propose the adoption of the phrase “exceptional circumstances”.
50. At point 177 Advocate General M Szpunar proposed that the court’s answer in CS should be
“that it is, in principle, contrary to article 20FEU for a member state to expel from its territory to a non-member state a third-country national who is the parent of a child who is a national of that member state and of whom the parent has sole care and custody, when to do so would deprive the child who is a citizen of the Union of genuine enjoyment of the substance of his or her rights as a citizen of the Union.”
He went on to define a proposed limitation on the derived right of residence in terms that used the phrases “exceptional circumstances” and “based on an imperative reason relating to public security”. He proposed that
“Nevertheless, in exceptional circumstances, a member state may adopt such a measure, provided that it: observes the principle of proportionality and is based on the personal conduct of the foreign national, which must constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, and is based on an imperative reason relating to public security.” (Emphasis added)
51. At para 36 of the judgment in CS the CJEU recognised “an exception” to the Zambrano
principle “linked, in particular, to upholding the requirements of
public policy and safeguarding public security”. That is entirely
inconsistent with the test of imperative grounds in article 28(3) of the
Directive which is only linked to public security. The rejection of the
test of imperative grounds is also apparent from para 40 which requires
the expulsion decision to be “founded on the existence of a genuine,
present and sufficiently serious threat”. That is not a test of
“imperative grounds”. Again, in that paragraph it is made clear that
this is a threat to either “the requirements of public policy or of
public security”. I consider that it is clear that the CJEU rejected the
proposal of enhanced protection based on imperative grounds of public
security. Two questions remain. The first is whether by using the phrase
“exceptional circumstances” Advocate General M Szpunar was proposing
that a Zambrano
carer should enjoy enhanced protection against deportation, such that
she can be deported in “exceptional circumstances” only. In view of his
associated proposal that there should be “an imperative reason relating
to public security” I am prepared to proceed, without deciding the
point, on the basis that he was proposing an additional requirement of
“exceptional circumstances”. On the basis of that assumed answer to the
first question the second remaining question is whether the CJEU adopted
Advocate General M Szpunar’s proposal of “exceptional circumstances”.
(c) Textual analysis of the judgment in CS
53. In CS the applicant, a TCN, married a British national and was granted indefinite leave to remain in the United Kingdom where she had a child for whom she was the sole carer. She was convicted of a criminal offence in the United Kingdom and sentenced to a term of imprisonment whilst her child was still very young. The Secretary of State rejected the applicant’s asylum application and ordered her deportation after she had been released from prison, in reliance on, inter alia, section 32(5) of the UK Borders Act 2007 under which deportation would always be ordered in respect of a TCN who was convicted of an offence of a certain gravity, unless that order breached the offender’s rights under, inter alia, the European Union treaties. The applicant’s appeal was allowed by the First-tier Tribunal on the ground that her deportation would lead to, inter alia, a breach of her child’s right as a Union citizen to move and reside within the European Union under article 20FEU in that, if the applicant were deported, her child would also have to leave the European Union. On the Secretary of State’s appeal, the UT referred to the CJEU for a preliminary ruling the question whether article 20FEU precluded the national legislation. The CJEU held that a decision to expel a TCN who was the sole carer of a Union citizen child on the ground of public policy or public security could not be made automatically on the sole basis of the criminal record of the person concerned. The CJEU went on to consider the basis upon which such an expulsion decision could be made.
54. In
paras 34-50 of the judgment and under the heading “The possibility of
limiting a derived right of residence flowing from article 20FEU” the
CJEU set out its analysis of the limitation on the Zambrano right of residence.
55. At para 36 the CJEU stated as follows:
“It should be pointed out that article 20FEU does not affect the possibility of member states relying on an exception linked, in particular, to upholding the requirements of public policy and safeguarding public security.” (Emphasis added)
In other words, conduct
which is potentially contrary to the interests of public policy and
public security - in most cases, the commission of a criminal offence -
was capable, in principle, of justifying an “exception” to the ordinary
general rule (namely, that a Zambrano
carer cannot be expelled where to do so would lead to the departure of
the dependent EU citizen from the territory of the Union). As I have
emphasised the CJEU specifically referred to reliance on “an exception”,
rather than the existence of “exceptional circumstances”.
57. I
consider that para 50 provides a summary of what is contained in the
preceding paragraphs so that the reference to “exceptional
circumstances” can only sensibly be read in the context of what comes
before. When seen against the background of the analysis beginning at
para 34, it is clear that the CJEU did not add any additional criterion
through the use of the words “exceptional circumstances”. On the
contrary, and as the Court of Appeal correctly decided, it was simply
explaining that, in the prescribed circumstances, an exception could be
made to the general rule that a Zambrano carer
could not be compelled to leave the territory of the Union. It was not
stating that certain undefined “exceptional circumstances” had first to
be demonstrated.
(d) The judgments in Marín and KA
58. In Marín under the same heading as used in CS
(“The possibility of limiting a derived right of residence flowing from
article 20FEU”) the CJEU at paras 81-88 carried out the same analysis
as in CS as to the exception to the Zambrano
derived right of residence, specifying the test to be applied and the
factors to be taken into account. In that respect the analysis of the
CJEU in Marín is identical to the analysis in CS. Furthermore, the test in para 84 of Marín is in the same terms as the test in para 40 of CS. In paras 85 and 86 in Marín the CJEU set out the matters to be taken into account. There is no reference in Marín to the phrase “exceptional circumstances”.
59. The CJEU also took the same approach in KA,
at paras 85-97. In that case, the Belgian authorities refused to
consider applications for residence permits from the TCN parents of
Belgian children on the grounds that the applicant was subject to an
entry ban. Having dealt with the circumstances in which a Zambrano
right could come into being at paras 63-76, the CJEU repeated at para
90 that article 20 TFEU did “not affect the possibility of member states
relying on an exception linked … to upholding the requirements of
public policy and safeguarding public security”. The CJEU went on, at
paras 90-97, to repeat the factors set out in CS and Marín which should be taken into account when that test is being applied. At para 92 it stated:
“…, it must be held that, where the refusal of a right of residence is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or public security, in view of, inter alia, criminal offences committed by a third-country national, such a refusal is compatible with EU law even if its effect is that the Union citizen who is a family member of that third-country national is compelled to leave the territory of the EU …”
Again, this is a repetition of the test in para 84 of Marín and in para 40 of CS. Nowhere in its detailed analysis in KA does the CJEU state or even imply that there is an additional hurdle that there must also be exceptional circumstances.
60. On three occasions, the CJEU has set out what must be taken into account when the deportation of a Zambrano
carer is being considered. Not once has it stated that an imperative
grounds test applies, nor has it stated that there is an additional
hurdle that there must also be exceptional circumstances. I consider
that it is inconceivable that the CJEU would have omitted to mention
this on three occasions if such a test applied.
VII Disposal of the appeal
Hele uitspraak: https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKSC/2020/53.html&query=(Zambrano)
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