DA/00146/2013

• Status of case: Unreported
• Hearing date: 8 Mar 2017
• Promulgation date: 6 Apr 2017
• Publication date: 25 Apr 2022
• Last updated on: 25 Apr 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: DA/00146/2013


THE IMMIGRATION ACTS


Heard at Field House, London
Decision & Reasons Promulgated:
on 21 January 2014, 06 March 2014,
29 April 2014 and 08 March 2017
on 6 April 2017



Before

The President, The Hon. Mr Justice McCloskey
and Upper Tribunal Judge O’Connor


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

CS
[ANONYMITY DIRECTION MADE]
Respondent


Representation
Appellant: Mr D Blundell (of counsel), instructed by the Government Legal Department
Respondent: Ms L Dubinsky (of counsel), instructed by Birnberg Peirce & Partners


DECISION
Introduction
This is the judgment of the panel to which both members have contributed.

ANONYMITY
1. At the outset, we would highlight that CS (hereinafter “the Respondent”) has the benefit of an anonymity direction made by both Tribunals and the protections which flow therefrom. Furthermore, there must be no publication of the identity of the Respondent’s children or anything which could result in their identification. We refer also to the separate, tailor-made anonymity order summarised in open court at the outset of the hearing on 08 March 2017 and promulgated subsequently on 10 March 2017.

The Respondent
2. The Respondent is a Moroccan national, now aged 30 years. In 2002 she was married to a British citizen in a ceremony conducted in her home country. On 8th September 2003, having been granted a visa based on her marriage, she entered the United Kingdom lawfully. She had permission to remain here until 20th August 2005. On 31st October 2005, her application for indefinite leave to remain on the ground of domestic violence allegedly perpetrated by her husband was granted by the Secretary of State for the Home Department (the “Secretary of State”). In 2010, she was reconciled with her husband and an Islamic wedding ceremony followed. On 14th July 2011, her son, a British citizen was born. He is now aged five years. The parents have been permanently separated since 2011.
3. On 21st March 2012, the Respondent was convicted of attempting to supply a prohibited article, a SIM card, to a prisoner of considerable notoriety during a prison visit. On 4th May 2012, she was sentenced to 12 months’ imprisonment. On 23rd May 2012, her appeal against sentence and conviction was dismissed. On 2nd August 2012, she was notified of her liability to deportation. On 30th August 2012, her legal representatives submitted an asylum application on her behalf. On 2nd November 2012, the custodial element of her sentence of imprisonment having expired, she was released from prison. The Secretary of State’s deportation decision followed, on 9th January 2013 (infra). The Respondent appealed. On 3rd September 2013 the First-tier Tribunal (the “FtT”) allowed her appeal. The Secretary of State appeals to this Tribunal with permission.

The impugned decision
4. By a decision dated 9th January 2013 made on behalf of the Secretary of State, the Respondent was notified that it had been decided to deport her from the United Kingdom under Section 32(5) of the UK Borders Act 2007. This decision incorporated a rejection of the Respondent’s application for asylum on the ground that a well founded fear of persecution in the event of returning to her country of origin had not been demonstrated. Simultaneously, the Respondent’s claims under Articles 2 and 3 ECHR were dismissed. It was further determined that by virtue of having been convicted of a criminal offence and sentenced to 12 months’ imprisonment (infra) she was excluded from humanitarian protection under paragraph 339C of the Immigration Rules. The final element of the decision entailed a conclusion that the deportation of the Respondent would not infringe her rights under Article 8 ECHR.

First instance decision
5. The FtT allowed the Respondent’s appeal against the refusal of asylum and, further, under Articles 3 and 8 ECHR and EU law grounds. This was followed by an application by the Secretary of State for permission to appeal to this Tribunal, which was granted. The terms in which permission to appeal was granted are contained in a combination of the initial grant and the ruling of this Tribunal dated 21st January 2014.
6. As a result, the task for this Tribunal is to decide whether the determination of the FtT is infected by a material error of law in any of the following respects:
(a) In refusing the Secretary of State’s application for an adjournment of the hearing.
(b) In deciding that the onus was on the Secretary of State to establish that the deportation of the Appellant was conducive to the public good.
(c) In its Article 8 ECHR assessment and conclusion.
(d) In holding that the decision in Case C-34/09 Zambrano v Office National de L’Emploi [2012] QB 265 was a complete bar to her deportation.

Referral to the CJEU
7. With specific reference to ground (d) above, this Tribunal, by its order dated 04 June 2014, referred certain questions to the Court of Justice of the European Union (the “CJEU”) under Article 267 TFEU. These questions, in substance, sought guidance on whether a Member State could expel to a third country a third country national convicted of a criminal offence who is the primary carer of a EU citizen child where such expulsion would require the child to leave the territory of the EU. The legal touchstones identified in the questions referred were Article 20 TFEU and Directive 2004/38/EC (the “Citizen’s Directive”). The Grand Chamber of the CJEU promulgated its preliminary ruling on 13 September 2016: see Secretary of State v CS (Case C-304/14) [2017] 2 WLR 180. We shall consider the Grand Chamber’s judgment in some detail infra. The hearing of this appeal was resumed and completed thereafter.

First ground of appeal: the fair hearing issue
8. The material facts bearing on this discrete issue are not in dispute. In brief compass:
(a) The impugned decision having been made on 9th January 2013, the Respondent’s Notice of Appeal was dated 23rd January 2013.
(b) On 28th January 2013, the FtT issued the following directions, which were addressed to both parties:
“The hearing will be conducted by a panel. It is directed that all documents must be filed in duplicate for the panel hearing.”
In separate directions, bearing the same date, the Secretary of State was required to serve a series of specific documents. These directions further stated:
“The Appellant [the Respondent herein] or his or her representative must file any of the documents referred to above that they have in their possession or are able to obtain and must serve copies on the Home Office Presenting Officer’s Unit ….
Both parties
All documents must be filed no later than 10 days before the hearing or if no hearing date has yet been notified then 10 days after the date of these directions.”
These directions also brought to the attention of the parties Rule 21 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 which, inter alia, emphasises the importance of complying with directions regarding the preparation and service of evidence pre-hearing.
(c) On the same date, 28th January 2013, the Notice of Hearing, intimating that the appeal would be heard on 19th February 2013, was transmitted to both parties.
(d) By letter dated 5th February 2013, the Respondent’s solicitors requested an adjournment. They based this request on the need to obtain a report from a Social Work expert, having regard to their client’s challenge to the Secretary of State’s assessment that the best interests of the child would be furthered by the deportation of the Respondent, presumably accompanied by her son, to Morocco. This letter stated:
“…. The centrepiece of this appeal is the relationship between the [Respondent] and her son and the consequences for the son (a British citizen) if he were to relocate to Morocco with his mother ……”
It was proposed, to allow sufficient time for preparation of the report, that the appeal be relisted for hearing not before 8th March 2013. Strikingly, this letter was silent on the issue of expert country evidence.
(e) The FtT acceded to the Respondent’s adjournment request.
(f) Next, by Notice dated 15th April 2013, both parties were notified that a case management review hearing would be conducted on 9th May 2013. This Notice emphasised, once again, the importance of service of all evidence by both parties. It also highlighted that the topics which would, predictably, be considered at the case management hearing included “any requirement for expert/medical evidence”.
(g) On 3rd May 2013, the FtT issued the following directions to both parties:
“Copy of PSR [Pre-Sentence Report] within 7 days upon the Home Office and the Tribunal. A bundle to be served on Home Office and Tribunal not less than 14 days before the hearing date. Anonymity order granted or renewed.”
[Our emphasis]
(h) Next, on 9th May 2013, the case management hearing ensued. This gave rise to a new hearing date of 21st August 2013 being allocated. The “14 days” direction was reiterated.
(i) On 13th May 2013, a “Notice of Hearing” formally notified the parties of the rescheduled hearing date of 21st August 2013 and, once again, drew attention to the aforementioned directions.
9. Thus, on a total of four occasions in May 2013, the FtT directed that the Respondent’s bundle be served not later than two weeks in advance of the scheduled hearing date. It is apparent from these directions, and not disputed by either party, that no mention was made of any possible expert country evidence being obtained on behalf of the Respondent. In the event, the Respondent’s bundle was not served on the Secretary of State’s officials until 16th August 2013 (a Friday), in circumstances where the appeal had been listed for hearing on 21st August 2013 (the following Wednesday). It is common case that this would not have come to the attention of any relevant official until 19 August 2013 (the Monday). Thus, the bundle was effectively served on the penultimate working day before the hearing date.
10. On the morning of the hearing on 21st August 2013, the presenting officer representing the Secretary of State received, for the first time, the aforementioned Respondent’s bundle, a supplementary bundle and a skeleton argument on behalf of the Respondent. At this point in the tale we quote from the determination of the FtT at [7]:
“Before this Tribunal Mr P Armstrong for the Secretary of State requested an adjournment on the basis that it was necessary to cross examine the Appellant (who had not appeared for the hearing of her appeal) and had produced a doctor’s letter to the effect that due to health problems she was not in any position to attend. The second reason for the request for adjournment was that the files are voluminous and should be properly considered.”
In the next succeeding paragraph, the FtT explained why it rejected the first basis on which the Respondent’s representative applied for an adjournment. Nothing of significance turns on this. It suffices that we endorse the correctness of this discrete ruling. The FtT then addressed the second ground at [9]:
“As regards the second submission concerning the extent of the documentation this Tribunal had considered all the files properly on the morning of the appeal and so there was no reason to adjourn because of the extent of the documentation and there had been plenty of time for the Respondent’s presenting officer to consider the files as well. The appeal therefore proceeded.”
The parties are agreed that the hearing commenced at approximately 11.30 hours. The Respondent’s legal representative informed the FtT that there would be no objection to the Secretary of State’s representative having some further time to consider the papers. Our assessment of the agreed facts is that the Secretary of State’s representative had, at most, approximately two hours within which to absorb all the materials.
11. It is necessary to examine in a little detail the materials which the Secretary of State’s representative received so late in the day. The main bundle, which had effectively been served two working days previously, consisted of 341 pages, with the following main contents:
(i) The deportation order and associated letters.
(ii) The Notice of Appeal and an application for anonymity.
(iii) Transcripts of the sentencing of the Respondent and the Court of Appeal’s ensuing judgment.
(iv) Two social work reports [27 pages].
(v) The report of a country expert [11 pages].
(vi) Country background materials [117 pages].
(vii) The asylum and screening interviews [49 pages].
(viii) Miscellaneous documents [32 pages].
The supplementary bundle consisted of 22 pages, containing a miscellany of documents and a skeleton argument consisting of 10 pages. The latter contained a factual summary, outlined the Respondent’s claims for asylum and protection under Article 3 ECHR (quoting from the expert’s report) and formulated the Respondent’s claims under the Zambrano principle and Article 8 ECHR in conjunction with the Immigration Rules. The skeleton argument bears the date of 20th August 2013 (the eve of the hearing).
12. We realise that certain elements of the documentary materials – for example, the asylum and screening interview records - would not have been new from the Secretary of State’s perspective. However, many of the contents were indeed novel: in particular, the two social work reports, the country expert’s report, the country evidence and the skeleton argument. The parties are agreed that the report of the country expert, Dr Seddon, was unheralded in the sense that the possibility of a report of this nature being procured had not been signalled previously to either the FtT or the Secretary of State. This is confirmed by our examination of the procedural and case management history set out in [8] and [9] above.
13. The report of Dr Seddon was highlighted in the submissions of Mr Blundell (of Counsel) on behalf of the Secretary of State. The passages in Dr Seddon’s report to which our attention was particularly drawn include the following:
“[2.2] I have been asked to comment on the following matters … whether the client’s account is, in my opinion, plausible or not and whether any aspect in particular strikes me as implausible …
[4.7] … There can be little doubt, in my opinion, that this family has been – and remains – under close and constant surveillance by the Moroccan authorities … In July 2008 the Government of Morocco sent a group of Moderate Clerics to Europe to counter the malign influence of … radical clerics …
[4.9] … [The Respondent’s] arrest … and her subsequent conviction and imprisonment … would, it could reasonably be argued, add yet another reason for the Moroccan authorities to regard all members of this family with continuing suspicion …
[4.9] … The Moroccan authorities in both the UK and Morocco, therefore, would have known about her actions – and her initial arrest – prior to her conviction and the raising of the embargo on wider public reporting …
[4.14] … The Government of the Netherlands, for example, freely admits that the Dutch embassies monitor and analyse domestic and foreign political developments in their host country … This would certainly include reports on the conviction of Moroccan nationals, particularly if linked in some way to high profile persons or issues (e.g. international terrorism, Islamism etc) …”
It was submitted by Mr Blundell that these views were clearly influential in the determination of the FtT, having regard to the following passages (at [21] and [22]):
“We also noted the uncontested evidence of Doctor Seddon that it would be surprising, given the coverage of [XY] in the British media if the Moroccan authorities in the UK had the Moroccan Embassy had not been informed of the appellant’s arrest, given her relationship to [XY] and his son and the possible implications for terrorist links with others inside Morocco …..
Doctor Seddon went on to say in his report that in his view, if the Moroccan authorities were already aware of the Appellant’s arrest at that stage, it is entirely plausible that they would intensify their monitoring and harassment of the family in Larache as a result. It is also plausible that the brother … could have been arrested on the pretext of fighting to simply put pressure on the family in general and on the Appellant in particular.”
14. The essence of the argument developed was that, viewed fairly and objectively, by reason of the late service of the Respondent’s bundle and the refusal of the adjournment request, there was insufficient time and opportunity to properly absorb and construct a considered challenge to Dr Seddon’s opinions. One specific aspect of this contention was that the Respondent’s representative did not have the opportunity to draw to the attention of the FtT adverse assessments of Dr Seddon’s evidence in the previous Country Guidance Decisions of FM Algeria [2003] UKAIT 00178 and AK Afghanistan [2012] UKUT 00163.
15. On behalf of the Respondent, Ms Dubinsky placed some emphasis on the fact that this complaint of procedural unfairness did not feature in the Secretary of State’s original grounds of appeal. She further highlighted that the FtT, in the relevant passages of its determination, did not mention any lateness protest by the Secretary of State’s representative. She pointed out that Dr Seddon’s report was confined to the Respondent’s protection claims and submitted that the expert opinion was not material to the FtT’s decision on other grounds. In this context, it was contended that the Respondent’s success was based on the uncontentious facts of her criminal conviction, her association with XY and the attendant publicity. These, it was argued, were the three “trigger” risk factors. Finally, it was submitted that different standards of fairness applied to the Respondent and the Secretary of State, given that the former, but not the latter, is the beneficiary of the principle of anxious scrutiny.
16. In FM (supra), the UKIAT, in its evaluation of certain reports prepared by Dr Seddon in the guise of a country expert on Algerian affairs, described certain omissions from the text as “extraordinary … unexplained … [and] surprisingly inconsistent with the standards expected of an independent expert”: see [22] – [26]. The Tribunal continued:
“[26] … We cannot believe that Dr Seddon was unaware of the amnesty when writing his first report and considering both reports together we conclude that Dr Seddon’s advice, in the matters described above, fell well short of what we would have expected from an independent expert. Consequently we find that we can place no material weight upon the opinions expressed by him in them. We have before us extensive and properly sourced objective evidence from a variety of international organisations and have based our assessment of the country situation in Algeria upon that.”
These are swingeing criticisms indeed. They include an uncompromising assessment that Dr Seddon deliberately misled the Tribunal, a charge of undeniable gravity. More recently, in AK (Afghanistan) (supra) one finds another judicial rejection, albeit in somewhat less muscular terms, of Dr Seddon’s expert evidence: see [165] – [173]. In [172] in particular, there is a denouncement of a misleading statement in Dr Seddon’s report, while in [173] he is criticised for relying on dated evidence and failing to engage with “more recent evidence to the contrary”.
17. Neither party’s counsel demurred from the doctrinal correctness of the approach adopted by this Tribunal in its recent decision in Munir v Secretary of State for the Home Department [2014] UKUT 103 (IAC). We refer to, without reproducing [14] – [23]. We refer also to this Tribunal’s exposition of the governing principles in MM (Unfairness E & R) Sudan [2014] UKUT 105 (IAC), at [15] – [18] especially. We bear in mind too Lord Mustill’s celebrated statement that what fairness requires in any given context is, subject to considering certain well-established general principles, “essentially an intuitive judgment”: R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, at 560. We would add that while it is sometimes said that a first instance adjudicative body exercises a certain margin of appreciation, or discretion, in matters of this kind this is doctrinally suspect as it distracts attention from the real question, namely whether the refusal of an adjournment has denied a party its right to a fair hearing.
18. The basic question, in our estimation, is whether, by virtue of the combination of the late service of the Respondent’s documentary evidence and skeleton argument and the FtT’s refusal to adjourn the hearing, the Secretary of State’s right to a fair hearing at first instance was compromised. We determine this question by viewing all of the relevant facts and factors in the round, clinically and dispassionately, taking into account the parties’ arguments and eschewing any consideration of fault on the part of the Respondent’s representatives or unreasonableness on the part of the FtT.
19. The case management direction of the FtT which the Respondent’s representatives failed to honour was, in common with every direction of this kind, designed to further the overriding objective. It was not a disciplinary or punitive measure. Moreover, it had the further purpose of securing procedural fairness for the Secretary of State. Directions of this kind impose time limits so as to ensure that the other party has a reasonable opportunity to scrutinise the materials served and react accordingly. In the present case, the rationale underpinning the case management direction was that a period of 14 days would, fairly and reasonably, be required to enable the Secretary of State’s representatives to fully consider the Respondent’s evidence, to react and to prepare for the hearing accordingly. This direction was not given in some kind of abstract vacuum. Rather, it was driven by this reality.
20. In the event, the breach of the FtT’s case management direction by the Respondent’s representative was, in our judgment, egregious. While all of the Respondent’s evidence should have been served by 7th August 2013, the larger proportion of it was not served until, effectively, 19th August 2013, just two working days prior to the hearing date. This failure was compounded by the service of a further, albeit relatively small, quantity of evidence, coupled with a skeleton argument, on the morning of the hearing. The fact is that none of this material became available to the Respondent’s representative until then.
21. We do not decide this ground by reference to considerations of mere quantity. Rather, we take into account the issues to be determined by the FtT and the content of the evidence, in particular the expert’s report which, as we have already observed, was unheralded. We note that there was heavy reliance on this report in the Respondent’s skeleton argument. The service of the latter could not conceivably have been later in the day. We also take into account the various issues of law which it canvassed. These included a contention that citizenship of the EU gives rise to an absolute prohibition against expulsion in any circumstances. This was (as the present judgment confirms), on any showing, an issue of law of some importance and complexity. It appears to us that until service of the skeleton argument the Respondent’s case, in challenging the deportation order, had not been formulated in this way.
22. The salient facts and factors under scrutiny require an objective and evaluative judgment on the part of this Tribunal. Our judgment is that, in the circumstances which we have outlined, the FtT erred in law in failing to accede to the adjournment application made on behalf of the Secretary of State. In our view, there was manifestly insufficient time to consider and absorb the Respondent’s evidence and written arguments and to react and prepare accordingly. Viewed fairly, reasonably and objectively, we consider that the Secretary of State’s representative was clearly taken by surprise. The FtT failed to appreciate the extent of this disadvantage and the consequences thereof. Furthermore, in its determination of this discrete issue its emphasis was, inappropriately, on bulk rather than content. The necessary qualitative and evaluative assessment was missing. Furthermore, the FtT made no reference to the previous case management directions. In addition, in determining the discrete issue of adjournment, the FtT made no mention of the expert witnesses’ reports and the large volume of country evidence contained in the Respondent’s bundle.
23. In our judgment, the factors in favour of acceding to the Secretary of State’s adjournment request were compelling. The FtT has not identified any sustainable reason for its refusal. The test to be applied is whether an adjournment of the hearing could have given rise to a different outcome see Munir, [38] – [39]. We answer this question affirmatively. As a minimum, an adjournment would have enabled the Secretary of State’s representative to consider properly and fully the reports of the expert witnesses, the country evidence and the contentions formulated in the Respondent’s skeleton argument. An adjournment would also have triggered the possibility of a challenge to Dr Seddon’s evidence based on the earlier decisions in FM and AK (Afghanistan). Furthermore, we reject Ms Dubinsky’s submission that Dr Seddon’s report had no material influence on the decision of the FtT on the non-protection grounds: we consider that this contention is confounded by the relevant passages in the FtT’s determination considered as a whole and we refer particularly to paragraphs [19] – [24] thereof.
24. Thus, we conclude that the FtT erred in law in ruling that the Secretary of State’s request for an adjournment be refused. This conclusion is not motivated by any disciplinary or punitive consideration. Rather, it is based exclusively on our assessment of what the Secretary of State’s right to a fair hearing entailed in the particular circumstances prevailing on the date of listing before the FtT. While it may be otiose to do so, we emphasise that our determination of this discrete issue is based on the intensely fact sensitive context of the appeal before us.

Second ground of appeal: onus of proof
25. In its determination, the FtT said the following:
“[12] The burden of proof in deportation cases is on the Secretary of State who has to prove on a higher side of the civil balance of probabilities that deportation is conducive to the public good.”
In a later passage, the Tribunal stated:
“[31] … The Secretary of State has failed to prove before us that deportation is conducive to the public good.”
On behalf of the Secretary of State, it was argued that the FtT’s approach was erroneous in law. Mr Blundell’s submissions placed emphasis on the FtT’s asserted failure to consider either the relevant provisions and import of the UK Borders Act 2007 or the related jurisprudence, in particular the decisions of the Court of Appeal in Richards v Secretary of State for the Home Department [2013] EWCA Civ 244 and SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550. In the latter case Laws LJ, having highlighted the “freestanding importance of the legislative source of the policy as a driver of the decision maker’s margin of discretion when the proportionality of its application in the particular case is being considered”, at [51], continued:
“[52] In my opinion, however, this is a central element in the adjudication of Article 8 cases where it is proposed to deport a foreign criminal pursuant to section 32 of the 2007 Act …
[53] … An Act of Parliament is any way to be specially respected; but all the more so when it declares policy of this kind. In this case, the policy is general and overarching …
Clearly, Parliament in the 2007 Act has attached very great weight to the policy as a well justified imperative for the protection of the public and to reflect the public’s proper condemnation of serious wrong doers …. ”
Thus, in all but the most compelling cases the public interest will be damaged if the offender concerned is not deported. Mr Blundell also highlighted the FtT’s failure to consider the “complete code” constituted by the relevant related provisions of the Immigration Rules and the decision of the Court of Appeal in MF (Nigeria v Secretary of State for the Home Department [2014] 1 WLR 544.
26. We were also reminded in argument of the characteristics of a material error of law under the regime of sections 11 and 12 of the Tribunals, Courts and Enforcement Act 2007. In IA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 323, Keene LJ stated, at [15]:
“… An error of law will be regarded as material unless the decision maker must have reached the same conclusion without the error …
An error of law is material if the Adjudicator might have come to a different conclusion …”
To like effect is the statement of the Upper Tribunal in Anoliefo (Permission to Appeal) [2013] UKUT 00345 (IAC), at [16]:
“Where there is no reasonable prospect that any error of law alleged in the grounds of appeal could have made a difference to the outcome, permission to appeal should not normally be granted in the absence of some point of public importance that it is otherwise in the public interest to determine.”
Our attention was also drawn to the decision of the Court of Appeal in ML (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 844, per Moses LJ at [11] – [14] and Sir Stanley Burnton at [17] particularly.
27. On behalf of the Respondent, the panel understood Ms Dubinsky to initially accept that the FtT had fallen into error in placing an onus on the Secretary of State to demonstrate that the deportation of CS was in the public good, being incompatible with the domestic statutory regime.. It was submitted, however, that this error was immaterial since an absolute right was engaged, with the result that there was no balancing exercise to be performed. The absolute right in play invoked was the child’s right to full enjoyment of the benefits of EU citizenship. By virtue of this right, the appeal was bound to succeed under Article 8 ECHR and the relevant provisions of the Immigration Rules. This argument has now been rejected by the Grand Chamber in the present case.
28. Ultimately, Ms Dubinsky submitted that under EU Law the Member State bears the burden of justifying a derogation from a fundamental freedom, arguing by analogy by reference to Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14, at [29] and Arranz v Secretary of State for the Home Department [unreported, UTIAC, DA/00397/2015] at [43], decisions postdating the initial listing in this forum. Ms Dubinsky also relied on Straszewski v Secretary of State for the Home Department [2016] 1 WLR 1173, where Moore-Bick LJ formulated the governing principle in these succinct terms, at [12]:
“In a case where the removal of an EEA national would prima facie interfere with the exercise of his Treaty rights it is for the Member State to justify its action”.
29. While the decisions to which we were referred on the issue of burden of proof both belong to the domain of the Citizens’ Directive, ultimately it was not in dispute that the Secretary of State bears the onus of persuading this Tribunal that derogation from the derivative right of residence enjoyed hitherto by the Respondent is appropriate. We entertain no doubt that this is correct. In particular, this is consistent with the principle of ‘strict justification for derogation from fundamental rights’. It follows that the second ground of appeal discloses no error of law on the part of the FtT.

Third ground of appeal: the FtT’s Article 8 ECHR assessment
30. The Respondent’s Article 8 ECHR claim was the last issue addressed by the FtT, in [31] of its determination. It did so, firstly, by recording that the Appellant enjoys significant family and private life in the United Kingdom with her son of whom she is the primary carer and for whom she has sole responsibility, while noting that this genuine and subsisting parental relationship was not in dispute. Next, the FtT posed the five “Razgar” questions, followed by this passage:
“We therefore conclude, having regard to the submissions on both sides, that the deportation order cannot be upheld. The Secretary of State has failed to prove before us that deportation is conducive to the public good.”
This passage discloses the overlap between the second and third grounds of appeal. The FtT decided that the Respondent’s appeal under Article 8 succeeded.
31. On behalf of the Secretary of State, Mr Blundell’s initial submission preceded both the preliminary ruling of the Grand Chamber and the decision of the Supreme Court in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] 1 WLR 4799). The substance of his argument was that this aspect of the FtT’s determination cannot be sustained, given the outright failure to consider the relevant provisions of the Immigration Rules which, per MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544, were there considered to be a “complete code”. The FtT failed to give any consideration to the public interest in deportation, which is given expression by Parliament in the regime created by the UK Borders Act 2007. Furthermore, the FtT, having posed the “Razgar” questions, failed to answer any of them. Lastly, the FtT was criticised for its failure to consider the relevant provisions of the Immigration Rules, namely paragraphs 398 and 399 (as they were at the material time).
32. On behalf of the Respondent, it was acknowledged by Ms Dubinsky that the FtT had erred in law in determining her client’s Article 8 claim without any consideration of the Immigration Rules. It was submitted, however, that this error was immaterial, given that the provisions of the Rules permitted only an outcome favourable to her client. One aspect of this argument highlighted the distinction between persons sentenced to imprisonment of periods of four years or more and those sentenced within the range of twelve months to four years. It is convenient to reproduce the following pithy contention in the Respondent’s skeleton argument:
“In short, the Immigration Rules would impose a complete bar on CS’s expulsion even if EU Law did not”.
33. The operative and relevant provisions of the Immigration Rules were at the material time the following:
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.
399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would not be reasonable to expect the child to leave the UK; and
(b) there is no other family member who is able to care for the child in the UK; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and
(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and
(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.
34. At this juncture, we interpose the analysis that the qualifying conditions enshrined in paragraph 399 (a) of the Rules are cumulative. They are fourfold:
(a) the person must have a genuine and subsisting relationship with a child aged under 18 who is in the United Kingdom; and
(b) the child must be a British citizen, or have lived in the United Kingdom continuously for at least the seven years immediately preceding the date of the impugned immigration decision; and
(c) it would not be reasonable to expect the child to leave the United Kingdom; and
(d) there is no other family member who is able to care for the child in the United Kingdom.
The Secretary of State did not dispute that the first, second and fourth of these conditions are satisfied. The only contentious condition was the third namely whether it would not be reasonable to expect the Respondent’s son to leave the United Kingdom with her.
35. Prior to the referral to the CJEU, Ms Dubinsky’s primary submission was that it can never be reasonable to expect an EU citizen child to leave the territory of the EU. This was based on the indefeasibility of the Zambrano protection and certain decisions of this Tribunal considered in [36] – [37] below. In this context, we observe, there is a nexus between this ground of appeal and the fourth ground. We shall examine the decision of the Grand Chamber in some detail infra. As our analysis will demonstrate we consider this submission unsustainable and we do not understand it to be maintained.
36. Ms Dubinsky relied on the following passage in the supplementary written representations on behalf of the Secretary of State in Izuazu v Secretary of State for the Home Department (Article 8 – new rules) [2013] UKUT 00045 (IAC):
“The Secretary of State continues to accept that where the primary carer of a British citizen is denied a Zambrano right of residence on the basis that his or her removal of deportation would not force the British citizen to leave the EU, it will not logically be possible when considering any Article 8 claim made by such a person to determine their claim on the basis that the family (including the British citizen) can relocate together to a place outside the EU. However, the Secretary of State does not accept that it follows that there will be no circumstances in which a decision taken in respect of the primary carer of a British citizen can require that British citizen to leave the UK. The Secretary of State does not consider that the UK Border Agency letter sent to the Tribunal in Sanade suggested that she did accept that it is never reasonable to expect a British citizen party to genuine family life in the UK to relocate permanently abroad but apologises for any lack of clarity in the correspondence which may have caused the Tribunal to reach this conclusion.”
The position adopted on behalf of the Secretary of State, by the same official, in Sanade v Secretary of State for the Home Department [2012] UKUT 00048 (IAC) is recorded in [93] –[94] of the determination. The material passage is the following:
“We do accept, however, that in a case where a third country national is unable to claim a right to reside … it will not logically be possible, when assessing the compatibility of their removal or deportation with the ECHR, to argue that any interference with Article 8 rights could be avoided by the family unit moving to a country which is outside of the EU.”
The learned President recorded the Upper Tribunal’s concurrence with this statement. He continued:
“[95] This means that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, it is not possible to require them to relocate outside of the European Union or to submit that it would be reasonable for them to do so.”
37. The next in this series of decisions was Ogundimu v Secretary of State for the Home Department [2013] UKUT 00060 (IAC), where the Upper Tribunal stated:
“[113] Thus, in this appeal, TS cannot be required to leave the European Union to join the Appellant in Africa. She needs her mother in order to exercise her residence rights in the Union. To require her mother to join the Appellant in Nigeria (a country with which she has no ties of any sort and has never visited) is either to require the child to leave the European Union or the mother to leave the child. In the latter eventuality there is no evidence of anyone else able to adequately care for the child …
It is certainly unreasonable to expect either TS or JD [the child’s mother, a British citizen] to relocate to Nigeria.”
Thus, the Tribunal was impelled to the conclusion that the Appellant satisfied the requirements of paragraph 399 of the Rules.
38. In determining this ground of appeal, we remind ourselves of the legal status of the Immigration Rules. This issue was considered by this Tribunal recently, in Kaur (Children’s best interests/public interest interface) [2017] UKUT 14 (IAC), at [32]:
“As the decision in Hesham Ali makes clear, the fundamental task for tribunals in appeals involving recourse to Article 8 of the Convention is, having made appropriate findings of fact, to identify the public interest engaged, to correctly measure its strength and, ultimately, to determine whether the private and family life factors advanced by the appellant outweigh the public interest to the extent that the impugned decision is disproportionate. While this is the general approach, in the particular context of deportation the public interest is especially potent and will be outweighed only by an Article 8 claim which is “very strong indeed – very compelling”: per Lord Reed at [50]. Furthermore, in all cases the tribunal will give appropriate weight to the decision maker’s reasons for the proposed course of action: per Lord Reed at [44], reaffirming Huang v Secretary of State for the Home Department [2007] UKHL 11, per Lord Bingham at [16].”
The decision in Hesham Ali also draws attention to the policy status of the Immigration Rules and the considerable weight to be given to the Secretary of State’s assessment of the public interest: see [46] and [53].
39. We consider it important to highlight the legal context to which the decisions of the Upper Tribunal noted in [36] – [37] above belong. There have been significant developments in the legal framework since then. However, having regard to the date of the impugned decision of the Secretary of State, 09 January 2013, both these decisions and the then prevailing provisions of paragraphs 398-399 of the Immigration Rules must be given effect in our first stage determination of this appeal, namely the error of law stage. This was not in dispute between the parties. In determining this discrete issue, our starting point is twofold. First, by the operation of the Immigration Act 1971 the policy of the Secretary of State finds expression primarily in the Immigration Rules, as amended from time to time. Second, the Respondent, in this context, cannot pray in aid any absolute legal rule or principle debarring her deportation. It is well established that Article 8 ECHR is an intensely context sensitive provision which does not partake of bright line rules.
40. Ultimately, we consider that this ground of appeal falls to be resolved by the application of a relatively unsophisticated analysis. The crucial aberration of the FtT in its failure to apply the relevant provisions of the Rules was to fail to consider and determine whether it would be reasonable to expect the Respondent’s child to leave the United Kingdom. The question for this Tribunal on appeal is whether, giving effect to the principles noted in [26] above, this was a material error of law. A demonstrated error of law is immaterial if, objectively analysed, it had no impact on the outcome and made no difference to the result. Materiality is, however, established if the avoidance of the error might have yielded a different outcome. The application of these principles to this appeal does not involve some abstract, mechanistic exercise. Rather, the principles must be applied to the concrete factual matrix.
41. We repeat: at this stage of our appellate review the question for this Tribunal is whether the FtT committed a material error of law in respect of this ground of appeal. It seems to us that any appellate court or tribunal will exercise caution in its consideration of the “reasonableness” test in circumstances where the first instance judicial body has not applied this test at all. The effect of this is that this Tribunal is bereft of any preceding judicial evaluation and application of the reasonableness test. Furthermore, the judicial assessment of what is reasonable in any given context must, on appeal, entail the recognition of a band, or spectrum, of decisions with which an appellate court should not interfere. Thus we pose the question of whether the FtT, had it applied this test, could have respectably or sustainably concluded that it was indeed reasonable in all the circumstances to expect the Respondent’s child to continue to live with his mother in the mother’s country of origin. The burden of Ms Dubinsky’s argument was that the FtT could only have resolved this issue in the Respondent’s favour: no other conclusion could rationally have been made.
42. We find ourselves unable to adopt this black and white analysis. In our judgment, the application of the reasonableness test at first instance could have produced more than one rational outcome. It would have been incumbent on the FtT to consider and weigh a broad range of facts, factors and circumstances and make an evaluative judgment accordingly. These would have included, inexhaustively, the child’s EU citizenship, the absence of any links with his mother’s country of origin, their current social and economic circumstances, the Respondent’s enduring links with Morocco, the availability of family support in both countries, their predicted socio-economic status and circumstances in Morocco, any skills or qualifications possessed or obtainable by the Respondent and related matters. Fundamentally, the FtT would have been required to conduct a relatively penetrating exercise in comparison, juxtaposing the child’s current and likely future life in the United Kingdom with his predicted life in Morocco. We are unable to agree with the submission that this exercise, inevitably and inexorably, could not conceivably and rationally have yielded more than one outcome. It follows that this ground of appeal is made out.

The fourth ground of appeal: the EU citizenship issue
43. We begin our consideration of the fourth ground of appeal with an acknowledgement that our referral of important questions to the CJEU has resulted in regrettable delay of some three years in the final determination of this appeal. Notwithstanding, the justification for the referral decision requires no elaboration. The Grand Chamber has pronounced extensively on the issues of EU law referred for its consideration.
44. Having determined two of the first three grounds of appeal in favour of the Secretary of State, an order setting aside the decision of the FtT and requiring the same to be remade is prima facie appropriate. However, the question which arises is whether this course of action should be otherwise by reason of our determination of the fourth ground of appeal. Furthermore, as will become clear, there is some overlap between the issues raised by the third and fourth grounds of appeal. In our outline and consideration of the parties’ arguments which follows we consider it appropriate, again, to draw attention to the submissions preceding the decision of the Grand Chamber.
45. In our consideration of this ground of appeal it is convenient to begin with the initial submissions on behalf of the Respondent. The essence of the argument developed by Ms Dubinsky was that there is an absolute prohibition against the indirect expulsion of an EU citizen from the territory of the Union. While the contours of this issue have been narrowed and illuminated by the preliminary ruling of the CJEU, we consider it appropriate to begin by outlining the full range of the parties’ arguments as they were at the stage when the Article 267 referral was made.
46. In the operative passages of its determination, [26] – [30], the FtT devoted most of its attention to this issue. In doing so, it considered the decision of the CJEU in Ruiz Zambrano v Office National de l’Emploi (ONEm) [2012] QB 265 (Case C-34/09). The Tribunal also considered the decision in Sanade (supra). It expressed its conclusion in the following passages:
“[29] A citizen of the EU simply cannot be constructively expelled from the territory of the EU in any circumstances whatsoever … The obligation permits of no derogation at all …
[30] … If this deportation order is upheld, the effect would be to require the child to leave the UK. The deportation order in this case is therefore not in accordance with the law because it violates the child’s rights under Article 20 TFEU.”
The question for this Tribunal is whether the FtT erred in law in this assessment and conclusion. It is convenient to consider the parties’ arguments in reverse sequence.
47. The starting point is Article 20 of the Treaty on Functioning of the European Union (the “TFEU”):
“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.”
This is followed by Article 21(1):
“Every citizen of the Union shall have 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 CJEU has consistently stated that citizenship of the EU:
“… is intended to be the fundamental status of nationals of the Member States.”
See, for example, Chen v Secretary of State for the Home Department [2004] ECR I – 9925, [25].
48. This was reiterated by the Grand Chamber in Zambrano, [41]. The judgment continues:
“[42] In those circumstances, Article 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, paragraph 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 Union, having to leave the territory of the Union. 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.”
As appears from [45] of the judgment, the test is whether the measure under scrutiny deprives the EU citizen of “the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens.”
49. The submissions of Ms Dubinsky entailed a veritable tour d’horizon of the Luxembourg jurisprudence. While we have considered all of the references to which we were escorted, we confine ourselves to the following digest. In Minister voor Vreemdelingenzaken v RNG Eind [2008] 2 CMLR 1 (Case C-291/05), a case concerning a migrant worker EU citizen and a third country national daughter, the Grand Chamber stated, in [31]:
“In the main proceedings, since Mr Eind is a Netherlands national, his right to reside in the territory of the Netherlands cannot be refused or made conditional.”
The Grand Chamber contrasted this right with the qualified rights of non-economically active EU citizens outside their country of nationality, which is subject to the limitations and conditions specified in Directive 90/364. This was one of the decisions considered by the Third Chamber of the CJEU in McCarthy v Secretary of State for the Home Department (Case C-434/09) [2011] 3 CMLR 10, where the Court stated, in [29]:
“Likewise, the Court has also held that a principle of international law, reaffirmed in Article 3 of Protocol Number 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms … that EU law cannot be assumed to disregard in the context of relations between Member States, precludes a Member State from refusing its own nationals the right to enter its territory and remain there for any reason …”
The Third Chamber held that since the residence of a person residing in the Member State of which he is a national cannot be subjected to conditions, Directive 2004/38 cannot affect this unconditional right of residence: see [34].
50. The decision in McCarthy was followed swiftly by that of the Grand Chamber in Dereci v Bundesministerium für Inneres (Case C-256/11) [2012] 1 CMLR 45, [2012] All ER (EC) 373. This represented another landmark in the development of the Luxembourg Court’s jurisprudence relating to the concept, content and benefits of EU citizenship. In the context of the present appeal [66] – [67] are noteworthy:
“It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of EU 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.
That criterion is specific in character in as much 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.”
Notably, in deciding Dereci, the Grand Chamber gave consideration to Article 7 of the Charter of Fundamental Rights of the European Union and, indirectly, Article 8(1) ECHR.
51. The Respondent’s arguments also placed emphasis on the principle of international law whereby a state is prohibited from expelling its own nationals. This principle was recognised in one of the prominent decisions in the earlier jurisprudence of the ECJ, Van Duyn v Home Office (Case 41/74) [1975] Ch 358 in which the Plaintiff, a Dutch national, was refused leave to enter the United Kingdom on the ground that the proposed activity, involvement in scientology, was considered by the Government contrary to public policy. This resulted in domestic proceedings and a reference to the ECJ which, in its judgment, stated, at [22]:
“Furthermore, it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between member states, that a state is precluded from refusing its own nationals the right of entry or residence.”
The Court distinguished this from the ability of another Member State to refuse entry to a national of a different Member State on the ground of public policy, thereby denying the benefit of the principle of freedom of movement for workers. As Ms Dubinsky’s submissions demonstrated, this principle of international law has been recognised by the Luxembourg Court in a series of decisions.
52. This aspect of the Respondent’s argument also invoked Article 3 of the Fourth Protocol to the ECHR, which provides:
“1. No one shall be expelled by means either of an individual or of a collective measure, from the territory of the state of which he is a national.
2. No one shall be deprived of the right to enter the territory of the state of which he is a national.”
In Law of the European Convention on Human Rights (Harris et al, 2nd Edition), it is stated, at page 743:
“An expulsion occurs when a person is obliged permanently to leave the territory of a state of which he is a national without being left the possibility of returning later ….
Article 3 of the Fourth Protocol secures an absolute and unconditional freedom from expulsion of a national … .”
[Emphasis added.]
It was submitted that this prohibition is absolute and, furthermore, has been adopted without qualification in the jurisprudence of the Luxembourg Court and, to like effect, the jurisprudence of the ECtHR, by reference to decisions such as Slivenko v Latvia [2004] 39 EHRR 24, at [120].
53. At this juncture we refer to Directive 2004/58/EC (the “Citizens’ Directive”). This regulates the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Article 27 provides:
“(1) Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residences of Union citizens and their family members, irrespective of nationality, on the grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
(2) Measures taken on the 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 …
(4) The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy, public security or public health from another Member State to re-enter its territory without any formality, even if the document is no longer valid or the nationality of the holder is in dispute.”
[Emphasis added.]
Article 28 obliges the host Member State to take into account certain considerations before making an expulsion decision on grounds of public policy or public security. Ms Dubinsky submitted that the duty of re-admittance enshrined in Article 27(4) reflects the following general principle of international law:
“… Many important duties of a specific character are prescribed by reference to nationals of a state. For example, there is a duty to admit nationals expelled from other states and, by way of corollary, a duty not to expel nationals.”
See Brownlie’s Principles Of Public International Law (8th Edition), page 519.
54. Ms Dubinsky’s submissions also prayed in aid Protocol No 4 to the ECHR, Article 3 whereof prohibits the expulsion of nationals in the following terms:
“No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national. No one shall be deprived of the right to enter the territory of the State of which he is a national.”
Counsel emphasised that this is an absolute prohibition, admitting of no restrictions or exceptions, by reference to respected academic texts: Theory and Practice of the ECHR (Van Dijk, 4th Edition, pages 94 – 948) and Law of the European Convention on Human Rights (op.cit., pages 743 – 744). It was further submitted that expulsion is not confined to short term, or temporary, measures. While it would appear that neither the Luxembourg Court nor the Strasbourg Court has pronounced explicitly on this issue, the clearest statement in support of this submission is contained in Van Dijk (op cit), page 948, where the authors advert to the use of the word “permanently” in some of the Strasbourg jurisprudence and comment:
“The words ‘permanently’ and ‘without being left the possibility of returning later’ in this definition may create the wrong impression that temporal exclusion of nationals would be permitted. According to the Commission, these words have been included to make it clear that extradition does not fall under the concept of expulsion and consequently not under the prohibition of Article 3 either … .
On the basis of an extensive interpretation of the word ‘expelled’ one might conclude that a national enjoys protection against any measure according to which he has to leave his country under compulsion; in fact, in its report, the Committee of Experts itself puts the very wide interpretation of ‘to drive away from a place’ on the word ‘expel’.”
Relying particularly on this text, it was submitted that the mere fact that the EU citizen concerned, the Respondent’s son, could in theory return to the United Kingdom at any time following his mother’s deportation is of no moment.
55. In summary, Ms Dubinsky advanced three reasons in support of her proposition that every citizen of the EU enjoys an absolute protection against constructive expulsion from the territory of the Union. First, she suggested, an EU citizen cannot under any circumstances be the direct subject of a measure of expulsion from the territory of the Union. Second, EU law restricts the application of public policy and public security exceptions to circumstances in which the personal conduct of the individual whose EU law rights are being limited represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Third, to permit the constructive expulsion of a citizen of the EU from the territory of the Union based on the criminal conduct, even the threat to public order, of the citizen’s carer would have absurd consequences for the structure and hierarchy of protections in EU law. Thus, it was submitted, a citizen of the EU can never be compelled to leave the territory of the EU on account of the conduct of another person. In support of these submissions, Counsel prayed in aid the statement of the learned President in Sanade (supra) at [83] – [84]:
“It seems to us that the Court of Justice was applying the principle of international law that a citizen cannot be expelled from their own state in any circumstances to citizenship of the European Union and concluding that a measure that required an EU citizen to leave the Union would be contrary to EU law ……
If the collateral right of residence afforded to the parents is a narrow one and limited to cases where it is necessary to enable the child to enjoy his or her rights, it may very well be that there is no room for any derogation at all … .”
We note that this discrete submission featured in the skeleton argument of the Respondent presented to the FtT.
56. Mr Blundell’s succinct submission on behalf of the Secretary of State that the FtT had erred in law on this issue had several strands. His arguments began with the acknowledgement that, in the decision notice, the Secretary of State accepted that the Respondent is the primary carer of her son. Mr Blundell drew attention to various provisions of the Immigration (European Economic Area) Regulations 2006 (the “2006 Regulations”), in particular regulations 15A, 20, 21(1) and 21A. The effect of these provisions considered together, in brief, is that the 2006 Regulations provide for derogation from the Zambrano right of residence where its recognition would not be conducive to the public good. These provisions, he submitted, are compatible with the decision in Zambrano itself, which did not hold that EU citizenship is an absolute, non-defensible right.
57. Mr Blundell subjected the determination of the FtT to the following critique. Firstly, the Tribunal gave no consideration to the 2006 Regulations. Secondly, it erred in treating the decision in Sanade as authoritative and binding on this issue and failed to have regard to the Upper Tribunal’s earlier decision in Omutunde [2011] UKUT 00247, in particular the following passage:
“[32] … The Court of Justice did not have to consider how Article 20 would be applied if there were strong public interest reasons to expel a non-national parent. We would conclude (subject to any further guidance from the CJEU or the Court of Appeal) that any right of residence for the parent is not an absolute one but is subject to the Community law principle of proportionality.”
In its later decision in Sanade, the Upper Tribunal stated:
“[84] … If the collateral right of residence afforded to the parents is a narrow one and limited to cases where it is necessary to enable the child to enjoy his or her rights, it may very well be that there is no room for any derogation at all and our assumptions to the contrary in Omutunde at [32] … should not be regarded as sound in the absence of a decision of the Court of Justice on the point in a case that raised the issue.”
[Emphasis added]
It was submitted that the FtT erred in law in failing to engage with these conflicting decisions of the Upper Tribunal. Mr Blundell highlighted that in Sanade there was no consideration of the doctrine of abuse of rights in EU law. The FtT was also criticised for failing to have regard to the opinion of the Advocate General in Zambrano which suggested, at [122], referring to Articles 20 and 21 TFEU:
“Those provisions do not preclude a Member State from refusing to grant a derivative right of residence to an ascendant relative of a citizen of the Union who is a national of the Member State concerned and who has not yet exercised rights of free movement, provided that that decision complies with the principle of proportionality.”
58. We were also reminded that there had been detailed argument on behalf of the Secretary of State on this issue in the “Oxford” cases (Qadir Ahmed and Others v Secretary of State, AA/08841/2008). These combined appeals involved 28 family members who committed large scale asylum and social security fraud. One of the issues in those appeals was, as in the present case, that of derogation from EU citizenship rights. Judgment in those cases had been reserved at the time of the 6 March 2014 hearing in the present appeal.
59. We received from Mr Blundell the written submissions, composed by him, on behalf of the Secretary of State in the aforementioned series of appeals. These reiterate the Omutunde/Sanade issue which we have outlined above. They also embody the following contentions:
(a) There is no principle of international law that a citizen cannot be expelled from their own state in any circumstances.
(b) Rather, the true principle of international law is that every state has a duty to receive in its territory its own nationals expelled from other countries: see Oppenheim’s International Law (9th Edition, pages 379 and 857 – 858).
(c) In domestic United Kingdom Law, the right of abode is not absolute. It can be limited or removed by clear statutory words: R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453, per Lord Hoffmann, [42] – [45].
(d) In the context of considering Article 8(1) ECHR, Baroness Hale suggested that there is no absolute prohibition against the deportation of the foreign parent of a child who is a citizen of the deporting state: Naidike v Attorney General of Trinidad [2005] 1 AC 538, at [75].
(e) In EU Law, a similar principle has been articulated by the CJEU, in Case C-63/99 (R (Gloszczuk) v Secretary of State for the Home Department [2001] 3 CMLR 46), [78] – [79].
(f) Similarly, in ECHR Law, there is no absolute rule precluding the constructive removal of British Nationals from the United Kingdom: see Jaramillo v United Kingdom [Unreported, Application no: 24865/94] and Sorabjee v United Kingdom [Unreported, Application no: 23938/94], both decisions of the European Commission, determined together.

Judgment of the Grand Chamber
60. At this juncture it is necessary to consider the judgment of the Grand Chamber in a little detail. We have in [7] above sketched the question of EU law which we referred to the CJEU for a preliminary ruling. In its judgment, the Grand Chamber formulated the substance of the three questions referred in the following terms, at [20]:
“By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 20 TFEU must be interpreted as precluding legislation of a Member State which requires a third-country national who has been convicted of a criminal offence of a certain gravity to be expelled from the territory of that Member State to a third country notwithstanding the fact that that national is the primary carer of a young child who is a national of that Member State, in which he has been residing since birth without having exercised his right of freedom of movement, when the envisaged expulsion would require the child to leave the territory of the European Union, thereby depriving him of the genuine enjoyment of the substance of his rights as a Union citizen.”
In the operative part of its judgment, the Grand Chamber answered the questions referred thus:
“Article 20 TFEU must be interpreted as precluding legislation of a Member State which requires a third-country national who has been convicted of a criminal offence to be expelled from the territory of that Member State to a third country notwithstanding the fact that that national is the primary carer of a young child who is a national of that Member State, in which he has been residing since birth without having exercised his right of freedom of movement, when the expulsion of the person concerned would require the child to leave the territory of the European Union, thereby depriving him of the genuine enjoyment of the substance of his rights as a Union citizen. However, in exceptional circumstances 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.”
61. In thus deciding the Grand Chamber rejected the Respondent’s contention, summarised in [45] above, that there is a rule of EU law conferring on every EU citizen an absolute protection against constructive expulsion from the territory of the Union: see inter alia [40]. The Grand Chamber held that EU law is not necessarily infringed where the third country sole carer of a EU citizen child is expelled from the territory of the Union in circumstances where this, per [32] –
“… would deprive the child of the genuine enjoyment of the substance of the rights which the status of Union citizen nevertheless confers upon him.”
What, therefore, is the test devised by the CJEU to give effect to this principle? The arguments of the parties’ respective counsel subjected the decision of the CJEU to microscopic analysis in their differing interpretations of the test formulated. We shall examine the judgment in some detail.

The Grand Chamber’s judgment under the microscope
62. The foundations and touchstones in the reasoning underpinning the conclusions expressed are readily identifiable. In its judgment the Grand Chamber:
(a) noted that the Citizens’ Directive was not applicable to the situation under scrutiny: [21] – [22];
(b) highlighted that the rights of the Respondent’s child under Article 20(1) TFEU represent the fundamental status of the nationals of the Member States: [23] – [25];
(c) noted the purely derivative rights enjoyable by third country nationals, which may extend to a right of residence in a Member State: [27] – [29];
(d) observed that the expulsion of the Respondent “… would deprive the [EU citizen] child of the genuine enjoyment of the substance of the rights which the status of Union Citizen nevertheless confers upon him”: [32];
(e) considered that there could be a derogation from, or exception to, the derived right of residence flowing from Article 20 TFEU available to a third country national: [35] – [36];
(f) emphasised that as this issue falls within the scope of EU law, any such derogation (or exception) must take into account Article 7 of the Charter of Fundamental Rights of the EU (the right to respect for private and family life) and the EU citizen child’s best interests: [36];
(g) reasoned that the concepts of public policy and public security, interpreted strictly, could provide “a justification for derogating from the right of residence of Union citizens or members of their families”: [37];
(h) stressed that mere disturbance of the social order which any criminal offence entails will not suffice to warrant a derogation on the basis of public policy: rather “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” is required: [38];
(i) considered that derogation on the ground of public security will be justifiable on the basis of “a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of serious disturbance to foreign nationals or to peaceful co-existence of nations, or a risk to military interests”: [39];
(j) reasoned further that, thus, the expulsion of the Respondent could (in principle – our addition) be compatible with EU law: [40].
63. Continuing, the Grand Chamber:
(k) makes unambiguously clear that mere criminality on the part of the third country national is not sufficient, but must be accompanied by “… a specific assessment by the national 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”: [41]; further,
(l) this assessment must 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”: [42]; and
(m) thus a criminal record per se cannot justify the expulsion of a person such as the Respondent “… which may deprive [her] child of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen”: [45]; continuing –
(n) it follows that the national court must examine “… what, in [the Respondents’] conduct or the offence that she committed 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, on the ground of protecting the requirements of public policy or public security, an order deporting her from the United Kingdom”: [46]; in performing this exercise the national court must “… assess (i) the extent to which [the Respondent’s] criminal conduct is a danger to society and (ii) any consequences which such conduct may have for the requirement of public policy or public security of the Member State concerned”: [47]; this requires a “balancing exercise” by the national court taking into account in particular Article 7 of the Lisbon Charter and the child’s best interests, while observing the principle of proportionality: [48] – [49].
64. Having identified the series of building blocks and touchstones outlined immediately above, the Grand Chamber enunciated its conclusion, at [50]:
“In the light of all the foregoing considerations, the answer to the questions referred is that Article 20 TFEU must be interpreted as precluding legislation of a Member State which requires a third-country national who has been convicted of a criminal offence to be expelled from the territory of that Member State to a third country notwithstanding the fact that that national is the primary carer of a young child who is a national of that Member State, in which he has been residing since birth without having exercised his right of freedom of movement, when the expulsion of the person concerned would require the child to leave the territory of the European Union, thereby depriving him of the genuine enjoyment of the substance of his rights as a Union citizen. However, in exceptional circumstances 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.”
This, the concluding, paragraph mirrors the operative part of the judgment reproduced in [60] above.

The Grand Chamber’s test for derogation from Article 20 TFEU
65. While paying tribute to the erudition of some of the arguments formulated by counsel, we consider that the correct understanding of the decision of the Grand Chamber does not involve the intricacy and sophistication which were the hallmarks of Ms Dubinsky’s submissions. The main argument formulated was that the Grand Chamber has devised a two-stage test. In summary, the first stage (it was contended), requires the national court or tribunal to determine whether the ingredients of public policy, or public security, are established by the factual matrix under scrutiny, via an assessment of whether a genuine, present and sufficiently serious threat to the fundamental interests of society is demonstrated. The second stage (it was argued), which is triggered only if the first is overcome, entails posing the question of whether there are exceptional circumstances.
66. Ms Dubinsky developed this argument by reference to, inter alia, [177] and [179] of the Advocate-General’s opinion, which she sought to link with [50] and [51] of the judgment of the Grand Chamber. We are not persuaded that this nexus exists. We consider that the Advocate-General was clearly referring to, in holistic terms, an exception to the general rule, or principle, that the expulsion of a third country national such as the Respondent is contrary to Article 20 TFEU. In our view, the phrase “exceptional circumstances” in both the Advocate-General’s opinion and the Grand Chamber’s judgment operates as a shorthand device in both contexts and is an inadequate substitute for reading the whole of the final sentence in [50] and the same sentence, repeated, in the operative part of the judgment. In summary, we consider that this sentence gives expression to the “circumstances” in which the “exceptional” measure of expelling a third country national possessing a derivative right of residence may be lawfully undertaken compatibly with Article 20 TFEU.
67. To summarise, we consider that the term “exceptional circumstances”, which makes its first appearance in the concluding paragraph of the judgment and is repeated in the immediately ensuing (identical) operative passage, is referable directly to the Court’s consideration of the possibility of a derogation from, or an exception to, the EU citizen’s rights under Article 20 TFEU: see especially [34] – [37] of the judgment. In thus concluding, we consider that the Grand Chamber approved and adopted in substance the opinion of the Advocate-General in [177] – [179] with the important proviso that the Court plainly did not espouse the Advocate-General’s suggestion that expulsion must also be “… based on an imperative reason relating to public security”: see in particular [168] and [179] of his opinion. The criterion, or test, of “an imperative reason relating to public security” features nowhere in the decision of the Grand Chamber and, in our view, cannot on any reasonable process of construction or deduction be implied. Thus we reject Ms Dubinsky’s argument to the contrary.
68. Ms Dubinsky sought to fortify her argument by drawing on certain passages in the linked decision of the Grand Chamber in Marin v Administracion del Estado (Case-C-165/14) [2017] 2 WLR 117, which was processed in Luxembourg in tandem with the present case and gave rise to the promulgation of separate judgments on the same date. The main issue common to both cases was that of whether a derived (i.e. “Zambrano”) right of residence flowing from Article 20 TFEU could be limited and, if so, by reference to what criteria and in what circumstances: see [81]. The common ground occupied by the two cases is demonstrated by juxtaposing [34] – [41] of the judgment in the present case and [81] – [88] of the Marin judgment. The key distinguishing feature of the Marin case is evident from, inter alia, [22] – [23] and [61] of the judgment: the Spanish law in question entailed an absolute rule debarring a person with a criminal record from the grant of a residence permit. The Grand Chamber supplied a simple answer to the questions referred: derogation from a derived right of residence flowing from Article 20 TFEU cannot be justified on the sole basis of the criminality of the third country national concerned.
69. Our rejection of the two stage Grand Chamber test advocated on behalf of the Respondent does not lead ineluctably to acceptance of the competing construction of the judgment advanced on behalf of the Secretary of State. Mr Blundell, emphasising the importance of reading the judgment as a whole, invited us to conclude that the Grand Chamber has devised a composite test. He argued that the task for the national court is to conduct an overall assessment of everything which, according to the ruling of the Grand Chamber, may be relevant, by reference to the context of the individual case.
70. We consider that there is a third alternative, consisting of a two stage test which neither parties’ counsel espoused in argument. Focusing in particular on [46] – [49] of its judgment, the Grand Chamber stated that the national court (this Tribunal) must “first of all”(our emphasis) identify those features of the Respondent’s conduct, or the offence committed by her, which constitute a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or of the host Member State, which may justify, on the ground of protecting the requirements of public policy or public security, an order deporting her from the United Kingdom”: [46]. In [47] the Grand Chamber in essence repeated this:
“It is incumbent in this respect upon the referring court to assess (i) the extent to which [the Respondent’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.”
71. Thus the first question is: does the Respondent’s offending constitute a genuine, present and sufficiently serious threat to some identifiable public policy of the United Kingdom or its public security? If the answer is affirmative, this “may justify” an order deporting the Respondent from the United Kingdom. Whether deportation is in fact justified will depend upon the outcome of a further exercise on the part of the national court which the Grand Chamber has described in [48], in short hand, as a “balancing exercise”. In our estimation, the Grand Chamber has further made clear that if the answer to the question formulated is in the negative, the exercise to be performed by the national court is complete: the second stage is not reached.
72. We consider that our analysis of the two-stage test formulated above flows not only from [46] – [49] of the judgment of the Grand Chamber. The same conclusion is yielded by focussing on [39] – [42]. These two discrete groups of paragraphs, though not phrased in identical terms, are in substance to the same effect.
73. In cases where the initial question yields an affirmative answer, the Grand Chamber has provided clear guidance on the task of the national court at the next - second-stage thereby reached. This guidance is both general and specific. The starting point, in this respect, is [40] – [41] of the judgment. In [41], the Grand Chamber begins to provide guidance on the second stage. Its reference to “that conclusion” is clearly linked to the single sentence which constitutes [40]. In what follows the judgment identifies, inexhaustively, the permissible and impermissible ingredients in the equation for the national court. It begins by cautioning that expulsion of the third country national concerned from the Member State in question based solely on the subject’s criminality, will be an unlawful derogation from the derived right of residence flowing from Article 20 TFEU.
74. Thus, having reached the second stage of the test, what does the lawful expulsion of a third country national such as the Respondent require? The Grand Chamber proclaims, at [41], that this requires -
“… a specific assessment by the national 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 …
It adds, at [42]:
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.”
We construe the judgment to mean that the multi-layered exercise described in [41] – [42] and repeated in [48 – [49] falls to be performed only where the “genuine, present and sufficiently serious threat” to public security or some other public interest has been established by the Court.
75. The final aspect of the guidance provided by the Grand Chamber also belongs to the second stage. Furthermore, it is case specific. It is stated in [49]:
“In the present instance, account is to be taken of the child’s best interests when weighing up the interests concerned. 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) Jeunesse v The Netherlands ….”
[Our emphasis]
If further confirmation of the two stages which we have identified is required, it is found in the final sentence of [50] in the conjunctive “and” coupled with the immediately preceding comma. This sentence, of course, is reproduced verbatim in the operative part of the judgment. We would add that this assessment is consistent with the approach adopted by this Tribunal to the expulsion of EU citizens in previous cases. We refer particularly to MC (Essa Principles Recast) Portugal [2015] UKUT 520 (IAC), a case concerning the Citizen’s Directive and the EEA Regulations, which decided that it is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society that the proportionality of the expulsion decision falls to be considered. We believe that, to this limited extent only, the Grand Chamber was drawing on certain aspects of the Citizen’s Directive.

Is the UK Borders Act incompatible with EU law?
76. There is one further, discrete aspect of the judgment of the Grand Chamber which we must address. It was argued on behalf of the Respondent that the Grand Chamber has, in substance, ruled that the statutory regime constituted by sections 32 and 33 of the UK Borders Act 2007 is incompatible with EU law. We trace the threads of this argument in the following way. In our Order for Reference we stated, at [3]:
“The Order deporting CS from the United Kingdom was made under section 32(5) of the UK Borders Act 2007 (“the 2007 Act”). Under this legislation, where a person who is not a British Citizen is convicted in the United Kingdom of an offence and is sentenced to a period of imprisonment of at least 12 months, the Secretary of State must make a deportation order. This is a duty. This duty does not arise where the removal of the convicted person pursuant to the deportation order would:-
(a) breach a person’s rights under the European Convention on Human Rights and Fundamental Freedoms; or
(b) breach the United Kingdom’s obligations under the United Nations Refugee Convention; or
(c) breach the rights of the convicted offender under the EU Treaties.
By her decision, the Secretary of State concluded that none of these exceptions applies.
At [7] we stated, inter alia:
“The Secretary of State was granted permission to appeal to the Upper Tribunal. It has been argued on behalf of the Secretary of State that the FtT erred in law in its assessment and conclusions on all of the grounds upon which the FtT allowed CS’s appeal, including its assessment and conclusions relating to the child’s rights under Article 20 TFEU, the decision in Zambrano and the rights conferred on, or derived by, CS. The Secretary of State particularly submitted that she is not precluded by operation of EU law from deporting CS from United Kingdom to Morocco even if to do so would deprive CS’s Union citizen child of the genuine enjoyment of the substance of his rights attaching to his status as European Union citizen.”
At [10] we described this as an “issue of European Union Law” which “… has emerged as the main issue” in the appeal and is one which “… transcends the framework of the appeal to this Tribunal as its determination will be of wider application and impact”. This was followed by the three questions referred, in [11], which make no mention of the 2007 Act.
77. Ms Dubinsky reminded us of the decision of the Grand Chamber in Land Baden – Wurttemberg v Tsakouridis (Case C-145/09), [2011] 2 CMLR 11. In this decision the Grand Chamber considered, inter alia, the imperative grounds of public security threshold in Article 28(3) of the Citizens Directive: see [40] – [42] and [48] – [51] especially. As the Grand Chamber explained, the protections against expulsion conferred by Article 28 are a reflection of the “exceptional circumstances” standard rehearsed in recital 24 in the preamble to the Directive. This decision, in notable contrast with the preliminary ruling in the present case, concerned the construction and application of various provisions of the Citizens Directive. This Directive does not form part of the legal matrix of the present case. In principle, of course, it would have been open to the Grand Chamber to develop and formulate its reasoning and conclusions by invoking certain of the Directive’s provisions by analogy. However, strikingly, it did not do so: indeed, the Directive does not so much as warrant a mention in the Grand Chamber’s judgment.
78. It is correct that in its exposition of certain general principles in [39] the Grand Chamber refers to Tsakouridis. In the first of these references Tsakouridis is invoked as the underpinning of a broad general principle relating to the meaning and scope of “public security” in this field. The context of the second reference to Tsakouridis is a purely illustrative observation of the kind of criminality which may be embraced by the concept of public security. We consider that neither of these references lends any sustenance to Ms Dubinsky’s argument. Ditto the third reference to Tsakouridis, in [48], which is made in the context of the Grand Chamber’s exposition of the balancing exercise required of the national court, with specific reference to Article 7 of the Charter.
79. Taking into account the context outlined above, we consider that those passages in the judgment of the Grand Chamber which refer to the 2007 Act, in particular [4] – [5] and [43] – [44], are couched in summary and inconclusive terms. They do not reflect the full breadth of our Order for Reference. This is particularly clear from [44] where, referring to the domestic legislation, the Grand Chamber stated:
“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.”
[Our emphasis]
The Grand Chamber went no further. It did not have to since neither the construction nor the effect of United Kingdom domestic law fell within its province. On the contrary, taking into account the terms of our Order for Reference, the ruling of the Grand Chamber, in substance, was based on the presumption that [3] of our order contained an accurate depiction and digest of the relevant provisions of the 2007 Act. We are satisfied that the Grand Chamber has not condemned these provisions as incompatible with EU law. This conclusion is reinforced by the consideration that, as our Order for Reference made clear, the 2007 Act precludes deportation where this would breach the rights of the convicted offender under the EU Treaties: such rights encompass rights derived from those conferred on a EU citizen by Article 20 TFEU.
80. Our conclusion on this discrete issue is reinforced by a brief consideration of what the Grand Chamber decided in the conjoined Article 267 reference in the case of Marin. The provisions of Spanish domestic law underpinning this reference clearly differ from their UK counterpart in the 2007 Act. Spanish law does not permit any possibility of derogation from refusing to grant a residence permit to a person who has a criminal record: see [22] – [23] and [61]. The exercise of comparing and contrasting the two judgments is to be performed accordingly.

Judgment of the Grand Chamber: our conclusions
81. We summarise our conclusions on the judgment of the Grand Chamber thus:
(a) The decision of a Member State to expel from its territory a third country national who is the main carer of a EU citizen child who will, in consequence, be obliged to leave the territory of the EU derogates from a derived (“Zambrano”) right of residence flowing from Article 20 TFEU previously enjoyed by the person concerned.
(b) The subject’s criminal record per se does not justify derogation involving expulsion.
(c) The lawfulness of such derogation requires, firstly, the existence of a genuine present and sufficiently serious threat to the requirements of public policy or public security, adversely affecting one of the fundamental interests of the Member State. This is the first test which must be satisfied. Where this test is not satisfied the exercise required of the national court is complete.
(d) If the aforementioned test is satisfied, the expulsion of the third country national concerned will be lawful only where it results from a specific assessment of all the current and relevant circumstances of the individual case, giving effect to the principle of proportionality and having regard to (inexhaustively) the best interests of the EU citizen child of the third country carer, taking into account also any fundamental rights engaged, including (again inexhaustively) in particular Article 7 of the Charter and observing the principle of proportionality.
(e) The Grand Chamber has not attempted to formulate an exhaustive test: this is clear from the qualifying words “where appropriate” in [41] and “in particular” in [42].
(f) Subject to (e), the factors to be weighed in the requisite assessment will normally include the personal conduct of the third country national, the length and legality of such person’s residence in the Member State concerned, the nature and gravity of the person’s criminality, the extent to which the person is currently a danger to society and, as regards the EU citizen child, age, state of health, economic circumstances and family situation.

FtT error of law?
82. The FtT neither formulated nor applied the test devised by the Grand Chamber. Furthermore, it cannot be said to have done so in substance by any process of interpretation of its decision – and the Respondent did not argue to the contrary. The materiality of this error of law being abundantly clear, it follows that the fourth ground of appeal succeeds.

Remaking the decision of the FtT
83. Three of the four grounds of appeal have succeeded and we have explained our reasons for concluding that the errors identified within the contours of each of these grounds are material. It follows inexorably, giving effect to section 12 of the Tribunals, Courts and Enforcement Act 2007, that the decision of the FtT must be set aside. Thus it falls on the Upper Tribunal to remake said decision. We consider it convenient to address first the EU law issue which continues to occupy centre stage in this appeal.

Giving effect to the Grand Chamber’s test
84. Before turning to consider the competing arguments of the parties on this issue, we remind ourselves of certain key features of the factual matrix, which we have of course considered in its entirety. The first relates to the gravity of the Respondent’s offending. To the bare outline in [3] above we add the following.
85. The Respondent contested a charge of conveying a prohibited article, namely a mobile phone SIM card into Belmarsh Prison. At trial a jury convicted her of this offence. On 04 May 2012 the trial judge, sentencing the Respondent, described her offending in the following way:
“The SIM card in question was found prior to the visit by the female officer who searched you in a private room in accordance with the procedures in place for searching visitors to prisoners of this category. The SIM card was found in a small coin pocket in the jeans you were wearing under your Jilbab.”
The judge continued:
“The jury, by their unanimous verdict, clearly rejected your claim that you had placed the item in your jeans on an earlier occasion and had forgotten all about it. You knew full well from previous visits and notices in the prison visiting areas that it was a prohibited article. In knowingly taking it into the prison you must have been intending to transfer it to your father-in-law. Had you succeeded in doing this, you would have provided him with part of the means of communicating with any number of people outside the prison, including those whom he had sought previously to incite to murder.
It is a matter of common knowledge that taking a component part of a mobile phone into any prison undermines not only the purpose of a prison sentence but also the security of the prison. It is, however, made even more serious in your case, because you were visiting someone whom you knew to be a high-security prisoner and whose ability to communicate was central to the crime of which he had been convicted.
It was no part of your case that anyone else played a part in your decision to take this item into prison.
The maximum sentence for taking a list B article into prison is two years' imprisonment. Your counsel ... accepts that this offence crosses the custody threshold. You do not have the mitigation of a guilty plea but I do take into account the effect of the sentence upon your young child, as set out in the report of Judith Jones.
I am conscious of the consequences of separating you from your baby.
I take into account your previous good character and everything I have read about you in the pre-sentence report, including that your risk of re-offending is low. However, within the range of such offences, your offence was very serious and must, in my view, attract a significant and immediate custodial sentence.
Taking all of these factors into account, the least sentence I can pass in your case is one of 12 months' immediate imprisonment.”
86. The Court of Appeal, dismissing the Respondent’s ensuing appeal, stated:
”5. The pre-sentence report recommended a suspended sentence order with requirements of supervision and a specified activity. …
8. In some circumstances prisoners are permitted to telephone friends and relations, but such contact is monitored, otherwise prison security may be threatened, escapes may be planned, witnesses may be intimidated, and prisoners may continue to engage in criminal matters or arrange for money laundering, and all manner of other mischief may ensue. Smuggling mobile phones into prison is therefore a serious offence, which must be discouraged by passing deterrent sentences.
9. Contrary to what has been submitted, it seems to us to be highly relevant to the seriousness of this offence that the prisoner she was visiting was [‘XY’] who was detained as a category A prisoner following his conviction for the offence of inciting murder, and also detained in relation to pending extradition proceedings. In our judgment the particular danger of conveying a phone SIM card to someone such as [XY]is immediately obvious, for he could use it to communicate messages of support and encouragement to his followers outside. He could even use it to encourage or incite the commission of further offences. In our judgment (this) is a seriously aggravating factor to the commission of the offence.
15. Applying those principles to this case, it seem[s] highly likely to us that the appellant might have anticipated that if convicted she would be able to plead as powerful mitigation her personal circumstances as the carer of a young child. Even where the offender is the mother and sole carer of a young child, there can be a place for deterrent sentences. We have no doubt that this is such a case. In fact, as we have said, satisfactory alternative arrangements have been made for the care of the child.
16. We consider that a sentence of twelve months' imprisonment fully reflected such mitigation as was offered by her personal circumstances. Without it the sentence would no doubt have been longer. Accordingly, the appeal is dismissed."
(See [2012] EWCA Crim 1280 at [5] – [9] and [15] – [16])
87. The second feature of the evidence to be highlighted in this context is the professional assessment of the risk of the Respondent reoffending and any future threat to society posed by her. In sentencing, the judge noted both her previous good character and the assessment of a low risk of re-offending. He referred to the pre-sentence report, which we have considered. This report was partially compiled prior to the jury’s verdict. It contains the following material passages:
“While [the Respondent] cannot at present be motivated to address or understand offending behaviour which she currently denies, there are no other concerns about pro-criminal or anti-social attitudes ….
There is no evidence that [the Respondent] poses any risk of serious harm to anyone.”
The Probation Officer completed the report when the jury returned its verdict. The addendum includes the following:
“… I assess that she poses a low risk of serious harm and would therefore argue that imprisonment is not indicated on the grounds of public safety … Her need for rehabilitation is comparatively limited …”
A suspended sentence coupled with supervision was recommended. The author added that “… there are no concerns about her within the wider criminal justice community”.
The FtT, reflecting the Probation Officer’s assessment, stated the following:
“We noted that the [Respondent] has complied throughout her release both with the conditions of her license and the restrictions imposed ….
She has been assessed at all material times as posing both a low risk of reconviction and a low risk of serious harm.”
This finding was not in dispute between the parties.
88. The battle lines between the parties on how the Grand Chamber’s test should be applied can be summarised succinctly. On behalf of the Secretary of State, Mr Blundell acknowledged that while the demonstration of a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of society normally requires a propensity to offend or re-offend, past conduct alone may suffice. On behalf of the Respondent, Ms Dubinsky argued that this runs contrary to well established norms of EU law, is in conflict with the Grand Chamber’s test and, further, fails to recognise that even where a risk of future offending is demonstrated, this is a necessary, but not sufficient, condition for the expulsion of a third country national such as the Respondent.

The Bouchereau Principle
89. The decision in R v Bouchereau (30/77) [1978] 1 QB 732 formed the cornerstone of the Secretary of State’s argument, while the Respondent contended that the soi disant “Bouchereau exception” is no longer good law. In Bouchereau the issue considered by the European Court of Justice (“ECJ”), on a preliminary reference, was whether a criminal court’s recommendation that an EU national be deported was compatible with the free movement provisions of EU law, which were then Article 48 of the EEC Treaty and Directive No 64/221. It is appropriate in this context to reproduce Article 3 of the latter measure:
“(1) Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.
(2) Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures …”
On behalf of the United Kingdom it was argued that –
“… cases do arise, exceptionally, where the personal conduct of an alien has been such that, while not necessarily evincing any clear propensity on his part, it has caused such deep public revulsion that public policy requires his departure.”
(Noted in the Advocate General’s opinion at page 742.)
90. In the operative section of its judgment, at [27], the ECJ reasoned that Article 3(2) of the Directive –
“… must be understood as requiring the national authorities to carry out a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy, which does not necessarily coincide with the appraisals which formed the basis of the criminal conviction.”
(our emphasis.)
The Court continued, at [28] – [29]:
“The existence of a previous criminal conviction can, therefore, only be taken into account insofar as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.
Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.”
Finally, the Court – answering a separate question - stated at [35]:
“… recourse by a national authority to the concept of public policy pre-supposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society.”
91. The decision in Bouchereau was considered by the Court of Appeal in R v Secretary of State for the Home Department, ex parte Marchon [1993] CMLR 132, where the litigation matrix was comparable, the main distinction being that the offending of the EU national concerned was of substantially greater gravity. The Court gave effect to the Bouchereau principle. It stated, at [14]:
“Applying that principle, the offence which this present appellant committed was a very serious and horrifying offence in a field where there is grave danger from the use of heroin and the supply of heroin in this country. It is an especially horrifying offence, repugnant to the public, where committed by a doctor.”
The Court added, at [16]:
“The offence itself committed by him is an affront to the requirements of public policy in the present case and it involved a disregard of the basic or fundamental or moral tenants of society.”
In the same passage, the Court referred to the test of –
“… whether the committing of such an offence in its circumstances itself involves a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society and so sufficient to warrant deportation.”
It is clear from the main judgment of the Court, that of Dillon LJ, and the two concurring judgments that a risk of reoffending was not considered a necessary condition of deporting the EU national involved: see [19], per Beldam LJ and [24], per Roch LJ.
92. The decisions in Bouchereau and Marchon were considered quite recently by the Court of Appeal in Straszewski v Secretary of State for the Home Department [2016] 1 WLR, which concerned a decision by the Secretary of State under the Immigration (European Economic Area) Regulations 2006 to expel, on the grounds of public policy and public security, an EEA national with a permanent right of residence in the United Kingdom who had been convicted of one offence of unlawful wounding and two offences of robbery. In the second appeal the framework was the same, with the exception that the criminality consisted of three offences of identity fraud perpetrated against a vulnerable elderly person involving sums totalling £112,000.
93. The Court held, firstly, that the burden of proof rests on the Secretary of State: see [12]. The Court highlighted two particular emphases in the Bouchereau decision: first, that free movement of EU citizens is a fundamental right and, second, that the application of the public policy test involves “…… the need to look to the future rather than the past in all but the most exceptional cases …”: see [17] and [20]. The Court also noted the distinction between the legal rules governing the deportation of foreign criminals (on the one hand) and EEA nationals with a permanent right of residence (on the other).
94. The context stimulating the Court of Appeal’s consideration of Bouchereau and Marchon is apparent from a consideration of [11] – [20] of its decision as a whole. In brief, the Court was considering a discrete argument on behalf of the Secretary of State that “wider factors” such as society’s revulsion at the offending concerned and the public interest in deterrence could legitimately be considered in the making of expulsion decisions under the EEA regulations. The general principle which the Court formulated is contained in [20]:
“… the right of freedom of movement … can be interfered with only in cases where the offender represents a serious threat to some aspect of public policy or public security. Save in exceptional cases, that is to be determined solely by reference to the conduct of the offender (no doubt viewed in the context of any previous offending) and the likelihood of re-offending. General considerations of deterrence and public revulsion normally have no part to play in the matter.”
At [31] the Court added:
“… public revulsion at the offender’s conduct has [no] part in deciding whether there are sufficiently serious grounds of public policy to justify his deportation, save in exceptional circumstances of a kind in which failure to remove the offender might itself tend to undermine confidence in the state’s ability to administer justice.”
95. It is clear that the Court of Appeal had some reservations about the correctness of the decisions in Bouchereau and Marchon: see [19] in particular. However, beyond its expression of doubt the Court did not venture. Its reservations were prompted particularly by the decision of the Sixth Chamber in Nazli v Stadt Nurnberg (Case C-340/92) which concerned the lawfulness of deporting a Turkish worker who had been convicted of playing a secondary role in dealing in 150 grams of heroin and was punished by a suspended sentence of 21 months imprisonment. The second of the two questions referred by the German court raised the issue of expulsion on the sole ground of the public policy of deterrence. The case concerned a Turkish worker who had been economically active in Germany pursuant to the Turkey/EU special arrangements. The Sixth Chamber of the European Court answered the question in these terms, at [64]:
“… Article 14(1) of Decision No 1/80 is to be interpreted as precluding the expulsion of a Turkish national who enjoys a right granted directly by that decision when it is ordered, following a criminal conviction, as a deterrent to other aliens without the personal conduct of the person concerned giving reason to consider that he will commit other serious offences prejudicial to the requirements of public policy in the host Member State.”
At [57] the Court reiterated the test of “the existence of a genuine and sufficiently serious threat to one of the fundamental interests of society”. In doing so, it referred to Bouchereau, [35].
96. It is convenient at this juncture to dispose of one discrete aspect of the arguments of counsel. The European Court’s reference to Bouchereau in the Nazli decision is, in our view, inconsequential. Notably, the specific paragraph highlighted – [35] – is located in that part of the Bouchereau judgment dealing with the third question referred, which is summarised in [31]. This section of the Court’s judgment does not deal with what has become known as the “Bouchereau principle”: this, rather, is found in [25] – [30] under the rubric of “The Second Question”. In short, we are satisfied that it is not appropriate to distil from Nazli an endorsement of or any weakening of or departure from the Bouchereau principle.
97. Next we pose the question of whether societal revulsion and abhorrence generated by the previous offending of the person concerned is an intrinsic element of the Bouchereau principle. We do so because while the principle espoused by the Advocate General (at page 742) encompassed the factor of “such deep public revulsion that public policy requires his departure”, the Court did not adopt this in its reasoning and conclusion at [27] - [30] or in the operative part of its decision (at page 761). Furthermore, we can identify no basis for concluding that the “societal revulsion” factor was approved by the Court by implication. Rather, the focus is consistently on the conduct of the offender. We find this unsurprising given the difficulties which would invariably arise in any judicial exercise of, first, attempting to establish whether the offending did generate something as amorphous and vague as public revulsion and, if so, second, to evaluate and measure its intensity and extent. EU law has never favoured elusive and subjective juridical exercises of this kind.
98. What is clear beyond peradventure, in our estimation, is that the decision in Bouchereau established a dichotomy of a general rule and an exception. The general rule is that the test of personal conduct constituting a present threat to public policy is satisfied only where there is proof of a propensity to reoffend. The exception to this general rule is that the requisite threat may be established by past conduct alone. Notably, in its formulation of the exception to the general rule, the Court in Bouchereau did not attempt any prescription. Simultaneously, it offered no definition of “public policy” other than in the context of answering the third question referred, equating this with “one of the fundamental interests of society”: see [35].
99. We have taken cognisance of the mention of the Bouchereau decision in Orfanopoulos v Land Baden-Wurttemberg [2005] 1 CMLR 18. There the European Court, in answering the first question referred in the first of the two cases concerned, stated unequivocally that the automatic expulsion of an offender under the domestic laws of a Member State is not compatible with EU law: see [70] – [71]. In thus holding, at [66], the Court referred to Bouchereau. Notably, this was a reference to [35] of Bouchereau which, as we have observed above, belongs to the uncontroversial section of the judgment namely that reiterating the “genuine and sufficiently serious threat to the requirements of public policy” test which, as Orfanopoulos makes clear, requires an assessment of the personal conduct of the offender or the danger which he poses to public policy.
100. In addressing the first question referred in the second of the two cases, the Fifth Chamber provided an answer in somewhat fuller terms, at [95] and [96]:
“… the examination on a case-by-case basis by the national authorities of whether there is personal conduct constituting a present threat to the requirements of public policy and, if necessary, of where the fair balance lies between the legitimate interests in issue must be made in compliance with the general principles of Community law.
[taking into account] … the particular legal position of persons subject to Community law and of the fundamental nature of the principle of the free movement of persons.”
Notably the Court, at [99], emphasised the application of the principle of proportionality which, in the context of convicted offenders, requires account being taken of –
“… particularly … the nature and seriousness of the offences committed by the person concerned, the length of his residence in the host Member State, the period which has elapsed since the commission of the offence, the family circumstances of the person concerned and the seriousness of the difficulties which the spouse and any of their children risk facing in the country of origin of the person concerned.”
101. The decision in Secretary of State for the Home Department v Dumliauskas [2015] EWCA Civ 145 also featured in the arguments of counsel. We note the prominence which this decision gives to the risk of future offending. However, we derive no particular assistance from it, given that it was a decision under the framework of the Citizen’s Directive and the EEA Regulations 2006, regulations 19 and 21 in particular. The two contexts are not the same.
102. Furthermore, given that the derivative right is secondary to the fundamental EU right engaged, namely the rights associated with citizenship of the Union conferred by Article 20 TFEU, we consider the clear orientation of the Luxembourg jurisprudence to be that derogation is to operate strictly: see Bouchereau at [33] and the ruling of the Grand Chamber in the present case at [37].

The Bouchereau principle: our analysis and conclusions
103. The one area of common ground between the parties on this issue is that there is a legitimate debate concerning the enduring force and validity of the Bouchereau principle. Having begun our analysis in [92] –[93] above, we add the following. The principle enunciated in [29] of Bouchereau is prima facie irreconcilable with Article 3(2) of Directive No 64/221. The prohibition enshrined in Article 3(2) is expressed in clear and unequivocal terms. This shining lack of ambiguity stands in contrast with the language employed by the European Court. The Court’s construction of Article 3(2) is expressed in a single, conclusionary sentence, in [27]. There is no real supporting or surrounding reasoning. The Court’s statement in [28] does not really grapple with the issue raised, given that there is no suggestion in Article 3(2) that previous criminality cannot be “taken into account”. Article 3(2) proclaims unambiguously that previous criminality is not in itself sufficient to justify the deportation of an EU national on the ground of public policy or public security. The Court’s riposte is that this is possible. There is no clearly identifiable bridging, or rapprochement, between these two opposing positions in the Court’s judgment.
104. Resort to the opinion of the Advocate-General in Bouchereau draws attention to the second of the questions referred by the national court and the competing arguments of the Government, the Defendant and the Commission: see 741-742 of the report. Two observations are apposite in this respect. The first is that the Advocate-General, in common with the Court, expressed his view in rather bare and unreasoned terms. The second is – as noted in [83] above – that the Court does not engage with the core of the Government’s submission, espoused by the Advocate-General, that Article 3(2) of the Directive does not preclude deportation on the sole ground of criminal convictions which stimulated “deep public revulsion”. Thus there is a discernible disconnect between what the Court was being invited by both the Government and the Advocate-General to decide and what it actually appears to have decided.
105. We would highlight another dimension of Bouchereau. This decision was concerned with the construction of a measure of EU law and the compatibility with such measure of an expulsion decision taken by an EU Member State against the national of another Member State. This uncluttered summary of the framework of the Bouchereau proceedings invites the analysis that the present proceedings have a quite different framework. CS, the Respondent, is not a EU citizen and it is common case that she cannot lay claim to the protections against expulsion contained in the Citizens’ Directive, which is the modern incarnation of Directive No 64/221. Viewed through this prism, the decision in Bouchereau has no direct application to her case.
106. The exposure of the Bouchereau litigation framework above invites one further reflection. The decision in that case may be viewed as an illustration of judge made law, in the sense that it involved the judicial construction of a measure of secondary EU law. We consider that the answer supplied by the ECJ to the question referred under scrutiny is not readily reconcilable with the language of the Directive. The discrete sphere of EU law to which the 1964 Directive belonged has, with the advent of Article 20 TFEU and the Citizens’ Directive, undergone major transformation. Chapter VI of the Citizens’ Directive establishes a regime which permits Member States to restrict the freedom of movement and residence of Union citizens and their family members on grounds of public policy, public security or public health: this is the general principle enacted by Article 27(1). This is followed by Article 27(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.”
[Our emphasis]
107. As our survey of some of the leading decisions of the European Court above indicates, Article 27 enshrines certain already established general principles of EU law. The second sentence of Article 27(2) is a mirror image of Article 3(2) of the 1964 Directive. We consider that if there had been an underlying intention to give effect to the Bouchereau principle, Article 27(2) could not have been enacted in these terms. There is no trace in Article 27(2) or any of the other provisions of Chapter VI of any of the elements of the Bouchereau principle, namely the argument of the United Kingdom, the view of the Advocate-General or [27] – [29] of the judgment itself.
108. Drawing together the various strands we summarise our evaluation of the Bouchereau decision in these terms. First, the conclusion expressed in [29] is prima facie irreconcilable with the clear language of Article 3(2) of the 1964 Directive. Second, the reasoning underpinning the conclusion is sparse and opaque. Third, the conclusion cannot be readily linked to either the argument of the United Kingdom Government or the opinion of the Advocate-General. Fourth, neither the legal regime to which the Bouchereau decision belongs nor its modern incarnation has any application to the expulsion of third country nationals such as the Respondent. Finally, in our judgment, the Bouchereau principle has not survived the advent of Article 20 TFEU and the Citizens’ Directive, either singly or in combination.
109. In the alternative if, contrary to our view, the Bouchereau principle represents an enduring and coherent rule of EU law which has outlived the developments noted above and is capable of applying to third country nationals, we consider that the contention that we should give effect to it in determining this appeal is confounded by the terms of the judgment of the Grand Chamber in the present case. We refer to, but do not repeat, our summary in [57] – [59] above and reproduce in full [40] - [42] of the Grand Chamber’s judgment:
“[40] 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.
[41] On the other hand, that 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 national 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.
[42] 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”.
110. We consider it abundantly clear from these passages that the derogation by a Member State from a derived right of residence flowing from Article 20 TFEU is permissible only where the test formulated in [40] is satisfied following a specific, individualised assessment of the broad dimensions outlined in [41] – [42] and giving effect to the principle of proportionality. The Court has pronounced unequivocally that the test cannot be satisfied where the expulsion decision is based exclusively on the criminality of the third country national concerned. We conclude that if the burial rites of the Bouchereau principle have not already been performed, there is no discernible basis upon which it can apply to the present case.
111. It follows that we reject the cornerstone of the Secretary of State’s argument. We shall, notwithstanding, address the question of how the Bouchereau principle should be applied on the assumption that our assessment above is incorrect.

The EU law issue: our conclusion
The EU Law Compatibility Issue
112. Our resolution of the fourth ground of appeal is based on the premise that the domestic law regime to which the impugned decision of the Secretary of State belongs, namely sections 32 – 34 of the UK Borders Act 2007, is compatible with EU law. If it were not, the decision would be unsustainable on the freestanding ground that it was not in accordance with the law under section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002. Though not necessary for our decision, given our primary conclusion, we shall nonetheless consider this discrete issue briefly.
113. We begin by outlining the relevant statutory provisions:
Section 32: Automatic deportation
(1) In this section “foreign criminal” means a person—
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that—
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.
(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.
Section 33: Exceptions
(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
(3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.
(4) Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the [EU] treaties.
(5) Exception 4 is where the foreign criminal—
(a) is the subject of a certificate under section 2 or 70 of the Extradition Act 2003 (c. 41),
(b) is in custody pursuant to arrest under section 5 of that Act,
(c) is the subject of a provisional warrant under section 73 of that Act,
(d) is the subject of an authority to proceed under section 7 of the Extradition Act 1989 (c. 33) or an order under paragraph 4(2) of Schedule 1 to that Act, or
(e) is the subject of a provisional warrant under section 8 of that Act or of a warrant under paragraph 5(1)(b) of Schedule 1 to that Act.
(6) Exception 5 is where any of the following has effect in respect of the foreign criminal—
(a) a hospital order or guardianship order under section 37 of the Mental Health Act 1983 (c. 20),
(b) a hospital direction under section 45A of that Act,
(c) a transfer direction under section 47 of that Act,
(d) a compulsion order under section 57A of the Criminal Procedure (Scotland) Act 1995 (c. 46),
(e) a guardianship order under section 58 of that Act,
(f) a hospital direction under section 59A of that Act,
(g) a transfer for treatment direction under section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), or
(h) an order or direction under a provision which corresponds to a provision specified in paragraphs (a) to (g) and which has effect in relation to Northern Ireland.
(6A) Exception 6 is where the Secretary of State thinks that the application of section 32(4) and (5) would contravene the United Kingdom's obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16th May 2005).]
(7) The application of an exception—
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but section 32(4) applies despite the application of Exception 1 or 4
Section 34: Timing
(1) Section 32(5) requires a deportation order to be made at a time chosen by the Secretary of State.
(2) A deportation order may not be made under section 32(5) while an appeal or further appeal against the conviction or sentence by reference to which the order is to be made—
(a) has been instituted and neither withdrawn nor determined, or
(b) could be brought.
(3) For the purpose of subsection (2)(b)—
(a) the possibility of an appeal out of time with permission shall be disregarded, and
(b) a person who has informed the Secretary of State in writing that the person does not intend to appeal shall be treated as being no longer able to appeal.
(4) The Secretary of State may withdraw a decision that section 32(5) applies, or revoke a deportation order made in accordance with section 32(5), for the purpose of—
(a) taking action under the Immigration Acts or rules made under section 3 of the Immigration Act 1971 (c. 77) (immigration rules), and
(b) subsequently taking a new decision that section 32(5) applies and making a deportation order in accordance with section 32(5).
114. As we have observed in [67] above we consider that in [44] of its judgment the Grand Chamber did not condemn this statutory regime as incompatible with EU Law. Furthermore, it was not requested by the questions referred to provide a preliminary ruling on this issue. Its observations are, in our view, tangential and inconclusive.
115. We can identify no incompatibility of the kind asserted on behalf of the Respondent. We consider that the combined effect of sections 32 and 33 of the 2007 Act is that a deportation order in respect of “foreign criminal”, as defined, is precluded where this would “… breach rights of the foreign criminal under the EU Treaties”. This prohibition is both unambiguous and absolute. In the case of the Respondent, the Treaty right engaged is the derivative right flowing from Article 20 TFEU. The Grand Chamber has devised the test for determining whether the deportation of CS would breach this right. There is no automaticity. Sections 32 and 33 must be applied accordingly.

The Article 8 ECHR/Immigration Rules Issue: Remaking
116. We begin by identifying the legal framework to be applied. This has altered since the FtT made its decision. Having regard to the decision in YM (Uganda) [2014] EWCA Civ 1292), it has the following components:
(a) Part 5A of the Immigration Act 2014;
(b) The current incarnation of paragraphs 398 to 399A of the Immigration Rules; and
(c) Article 8 ECHR.
117. We recognise the free-standing contention in the Respondent’s case that to deport her to Morocco in circumstances where she will be accompanied by her child would infringe the rights of both under Article 8 ECHR. The foundation of this argument is constituted by the three decisions of the Upper Tribunal considered in [36] – [37] above. If and insofar as the first two decisions – Izuazu and Sanade – express an absolute principle that it can never be reasonable to expect a child such as this to depart the territory of the European Union, the SSHD’s argument must prevail.
118. Beyond this we do not venture as a further hearing will be required in order to complete the remaking exercise, other to express our doubt that the decisions in Izuazu and Sanade add any free-standing dimension to the Respondent’s Article 8 case.

DECISION
119. We conclude:
(i) The decision of the First-tier Tribunal contains multiple errors of law each capable of affecting the outcome of the appeal and, hence, material. It is set aside in consequence.
(ii) We shall proceed to remake the said decision. Further directions will be issued.



Signed: Bernard McCloskey

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 16 March 2017