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Court of Appeal reviews law on deportation cases involving EU derived rights of residence

By Conor James McKinney

Secretary of State for the Home Department v Robinson (Jamaica) [2018] EWCA Civ 85 was a deportation appeal decided earlier in the year. Unusually for an appeal judgment, we didn’t discuss it on Free Movement at the time. But Adam Pipe of No.8 Chambers has included it in his handy review of 2018’s major immigration cases to date — so we thought we’d flag it up.

The case was about, among other things, the effect of the Court of Justice of the European Union decision in joined cases C-304/14 CS v UK and C-165/14 Rendón Marin v Spain. As Colin explained at the time, this ruling established that “Zambrano-like derived rights of residence under EU law are not automatically lost if a crime is committed. Instead, each case must be assessed on its merits and a judgment reached applying normal principles of EU law”.

In Robinson, the Court of Appeal summarised the impact of the CS/Marin judgment for the benefit of immigration judges dealing with deportation cases involving derived rights of residence under EU law. See paragraphs 57-63 in particular. Here is Adam’s one-sentence summary of what the court held:

Those with a derivative right of residence on Zambrano grounds must not [be] refused a residence permit on the sole ground that they have a criminal record, but deportation can be justified where the personal conduct of the third-country national constitutes a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society considering all relevant circumstances, in the light of the principle of proportionality.

The court went on to resolve what it called an “interesting debate” about whether C-30/77 R v Bouchereau is still good law. Lord Justice Singh, giving the lead judgment, held that it was: “past conduct alone, and ‘public revulsion’ in particular, may be sufficient to justify deportation of an offender”. That would only be in extreme cases, though. The facts of Robinson — conviction for supply of cocaine — were not at that level. Ms Robinson’s case was remitted to the Upper Tribunal for reconsideration, it having made errors of law in light of the CS/Marin principles.

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