Secretary of State for the Home Department v CS.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Rosas
• ECLI: ECLI:EU:C:2016:674
• Docket Number: C-304/14
• Date: 13 September 2016
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Grand Chamber)

13 September 2016 ( *1 )

‛Reference for a preliminary ruling — Citizenship of the Union — Article 20 TFEU — Third-country national having a young dependent child who is a Union citizen — Right to reside in the Member State of which the child is a national — Criminal convictions of the child’s parent — Decision to expel the parent resulting in the indirect expulsion of the child concerned’

In Case C‑304/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Upper Tribunal (Immigration and Asylum Chamber) (United Kingdom), made by decision of 4 June 2014, received at the Court on 24 June 2014, in the proceedings

Secretary of State for the Home Department

v

CS,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, M. Ilešič, L. Bay Larsen, C. Toader, D. Šváby, F. Biltgen and C. Lycourgos, Presidents of Chambers, A. Rosas (Rapporteur), E. Juhász, A. Borg Barthet, M. Safjan, M. Berger, A. Prechal and K. Jürimäe, Judges,

Advocate General: M. Szpunar,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 30 June 2015,

after considering the observations submitted on behalf of:

— CS, by R. Husain QC and L. Dubinsky and P. Tridimas, Barristers, instructed by D. Furner, Solicitor,

— the United Kingdom Government, by M. Holt and J. Beeko, acting as Agents, and D. Blundell, Barrister,

— the Danish Government, by C. Thorning and M. Wolff, acting as Agents,

— the French Government, by D. Colas and R. Coesme, acting as Agents,

— the Polish Government, by B. Majczyna, K. Pawłowska and M. Pawlicka, acting as Agents,

— the European Commission, by I. Martínez del Peral, C. Tufvesson and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 4 February 2016,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 20 TFEU.

2 The request has been made in proceedings between CS — a third-country national and the mother of a young child who is a Union citizen possessing the nationality of a Member State in which he has always resided — and the Secretary of State for the Home Department (‘the Home Secretary’) concerning a deportation order expelling CS from the territory of the United Kingdom to a third country because of her criminal record.

Legal context

EU law

3 Article 3 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda at OJ 2004 L 229, p. 35, OJ 2005 L 30, p. 27, and OJ 2005 L 197, p. 34), headed ‘Beneficiaries’, provides: ‘1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them. 2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons: (a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence ... ... The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’

United Kingdom law

The Borders Act

4 Under section 32(5) of the UK Borders Act 2007 (‘the Borders Act’), 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 Home Secretary must make a deportation order in respect of him.

5 It is apparent from section 33 of the Borders Act that that obligation is excluded where the removal of the convicted person in pursuance of the deportation order would: (a) breach a person’s rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 May 1950; (b) breach the United Kingdom’s obligations under the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, vol. 189, p. 150, No 2545 (1954)); or (c) breach rights of the offender under the EU Treaties.

The Immigration Regulations

6 Under regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006, in the version as amended in 2012 (‘the Immigration Regulations’), which takes account of the judgment of 8 March 2011, Ruiz Zambrano (C‑34/09, EU:C:2011:124), a person who satisfies the criteria in regulation 15A(4A) is entitled to a ‘derivative right to reside in the United Kingdom’.

7 However, in accordance with regulation 15A(9) of the Immigration Regulations, a person who would otherwise be entitled to a derivative right of residence under, inter alia, regulation 15A(4A) is not entitled to that right ‘where the [Home Secretary] has made a decision under regulation 19(3)(b), 20(1) or 20A(1)’.

8 By virtue of regulation 20(1) of the Immigration Regulations, the Home Secretary may refuse to issue, revoke or refuse to renew a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card ‘if the refusal or revocation is justified on grounds of public policy, public security or public health’.

9 Under regulation 20(6) of the Immigration Regulations, such a decision must be taken in accordance with regulation 21.

10 Regulation 21A of the Immigration Regulations applies a modified version of Part 4 of the Immigration Regulations to decisions taken in relation, in particular, to derivative rights of residence. Regulation 21A(3)(a) applies Part 4 as if ‘references to a matter being “justified on grounds of public policy, public security or public health in accordance with regulation 21” referred instead to a matter being “conducive to the public good”’.

11 It follows from those provisions that it is possible to refuse to grant a derived (or ‘derivative’) right of residence to a person who could otherwise claim a right of residence under Article 20 TFEU, as interpreted by the Court in its judgment of 8 March 2011, Ruiz Zambrano (C‑34/09, EU:C:2011:124), where that is conducive to the public good.

The dispute in the main proceedings and the questions referred for a preliminary ruling

12 CS, a third-country national, married a British citizen in 2002. In September 2003 she was granted a visa on the basis of her marriage and entered the United Kingdom lawfully, with leave to remain until 20 August 2005. On 31 October 2005, she was granted indefinite leave to remain in the United Kingdom.

13 In 2011 a child of the marriage was born, in the United Kingdom. CS is said to be the sole carer of the child, who is a British citizen.

14 On 21 March 2012, CS was convicted of a criminal offence. On 4 May 2012, she was sentenced to a term of imprisonment of 12 months.

15 On 2 August 2012, CS was notified that by reason of her conviction she was liable to be deported from the United Kingdom. On 30 August 2012, she applied for asylum in the United Kingdom. That application was considered by the appropriate national authority, namely the Home Secretary.

16 On 2 November 2012, CS was released after completing her period of imprisonment and on 9 January 2013 the Home Secretary rejected her application for asylum. The order deporting CS from the United Kingdom to a third country was made under section 32(5) of the Borders Act. CS challenged the order by exercising her right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) (United Kingdom). On 3 September 2013, her appeal was allowed on the ground that her deportation would lead to a breach of the Convention relating to the Status of Refugees, of Articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and of the Treaties.

17 In its decision, the First-tier Tribunal (Immigration and Asylum Chamber) found that, if a measure deporting CS were adopted, no other family member could care for her child in the United Kingdom, so that he would have to follow her to her State of origin. Referring to the rights of CS’s child that are linked to his Union citizenship, under Article 20 TFEU as interpreted by the Court in the judgment of 8 March 2011, Ruiz Zambrano (C‑34/09, EU:C:2011:124), it held that ‘a citizen of the EU simply cannot be constructively expelled from the territory of the EU in any circumstances whatsoever … [, that that] obligation permits of no derogation at all, including where … the parents had a criminal history … [and that] 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’.

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