Ms Robinson, a Jamaican national, was convicted of supplying a Class A drug in the UK in 2006. The Home Secretary sought to deport her but in the course of her lengthy appeal proceedings she had a son, D, who is a UK and EU citizen, and for whom she is the primary carer. Ms Robinson thereafter applied for leave to remain. The Secretary of State refused that application.
Ms Robinson’s appeal against deportation was dismissed by the First-tier Tribunal. On appeal to the Upper Tribunal, Ms Robinson argued that she had a right to reside in the EU derived under the Zambrano principle from D’s rights as an EU citizen. The Upper Tribunal found that there were errors of law in the First-tier Tribunal’s decision, set it aside and remade it, allowing Ms Robinson’s appeal.
The Secretary of State appealed to the Court of Appeal. Before the appeal was heard, the Court of Justice of the EU (the “CJEU”) delivered judgment in two cases which restricted the extent of the Zambrano principle. In S v Secretary of State for the Home Department (Case C-304/14) (“CS”), it held that “in exceptional circumstances a member state may adopt an expulsion measure…”.
On that basis, the Court of Appeal allowed the appeal and remitted the case to the Upper Tribunal for redetermination. The Court of Appeal held that the phrase “exceptional circumstances” in CS was not an additional requirement which the state must satisfy, but merely summarised an exception to the general rule that D, an EU citizen, cannot be compelled to leave the territory of the EU.
Ms Robinson appealed to the Supreme Court contending that the phrase created an additional hurdle to deportation.
The Supreme Court unanimously dismissed the appeal and held that the phrase “exceptional circumstances” does not import an additional hurdle before a Zambrano carer can be deported from the territory of the EU. The case is remitted to the Upper Tribunal for redetermination on that basis.
Hugh Southey QC was involved in this case.