Secretary of State for the Home Department v Robinson (Jamaica)

Factual and Procedural Background

This case concerns an appeal by the Secretary of State against the decision of the Upper Tribunal ("UT") dated 23 August 2013, which allowed an appeal by the Respondent against the First-tier Tribunal's ("FTT") decision dismissing her appeal against the Secretary of State's refusal to revoke a deportation order. The Respondent, a national of Jamaica, entered the United Kingdom in 2002 and acquired indefinite leave to remain in 2006. She committed a serious criminal offence involving Class A drugs and was sentenced to imprisonment in 2006. Following this, a deportation order was made in 2007, which was subject to various appeals and judicial reviews. The Respondent gave birth to a son in 2008, who is a British citizen. The FTT dismissed her appeal against the refusal to revoke the deportation order in December 2012, but the UT allowed her appeal in August 2013, finding errors of law in the FTT's decision and remaking the decision in her favour. The Secretary of State appealed to this Court in 2014, with the appeal stayed pending related CJEU decisions. The appeal was then resumed following the CJEU judgments in 2016.

Legal Issues Presented

1. Should this Court perform the proportionality exercise itself or remit the case to the UT?
2. What is the correct legal test in light of the CJEU decisions in Rendón Marin and CS?
3. What is the current status and effect of the decision in R v Bouchereau?
4. What is the relevance, if any, of the Rehabilitation of Offenders Act 1974?

Arguments of the Parties

Appellant's Arguments

• The test for materiality of an error of law is low; an error is material unless the decision would inevitably have been the same without it.
• The UT erred in law by treating the Zambrano principle as absolute, prohibiting deportation regardless of serious criminal conduct.
• The UT failed to properly apply relevant immigration regulations (Regulations 20 and 21A of the 2006 Regulations).
• The case should be remitted to the UT for reconsideration with full factual evidence, especially concerning the impact of deportation on the child.

Respondent's Arguments

• The UT made errors of law by regarding the Zambrano principle as absolute, but these errors were not material.
• The limited exceptions to the Zambrano principle recognized by the CJEU do not apply in this case.
• This Court should conduct the proportionality exercise itself rather than remit the case to the UT.
• The Respondent's deportation would not meet the criteria of a genuine, present, and sufficiently serious threat to public policy or security.
• The best interests of the Respondent's British child weigh against deportation.
• The 2006 Regulations are consistent with EU law and support the Respondent's position.
• The Court should uphold the UT's decision rather than remit the case.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first identified that the UT erred in law by treating the Zambrano principle as absolute, ignoring the exceptions recognized by the CJEU in Rendón Marin and CS. The Court emphasized that deportation decisions involving third-country nationals caring for EU citizen children require a proportionality assessment that balances public policy interests against the rights of the child and family life, with the child's best interests as a primary consideration.

The Court rejected the Respondent's submission that it should perform the proportionality exercise itself, noting that the UT had failed to perform this exercise at all. The Court held that remittal to the UT was necessary to allow a full consideration of up-to-date evidence, especially regarding the impact on the child.

Regarding the precedent in R v Bouchereau, the Court found it remains binding, clarifying that past criminal conduct alone may justify deportation only in exceptional cases involving extreme offences causing "deep public revulsion." The Court concluded that the Respondent's offence, while serious, did not meet this threshold.

The Court also considered the relevance of the Rehabilitation of Offenders Act 1974 and found it does not apply to immigration decisions under the UK Borders Act 2007, thus having no bearing on this case.

Ultimately, the Court agreed with the Secretary of State that the errors of law made by the UT were material, and the case must be remitted for redetermination with proper application of the proportionality test and consideration of all relevant facts.

Holding and Implications

The Court allowed the Secretary of State's appeal and remitted the case to the Upper Tribunal for redetermination on the merits.

The direct effect of this decision is that the UT must reconsider the Respondent's appeal applying the correct legal principles, including a full proportionality assessment with up-to-date evidence, particularly concerning the impact of deportation on the British child. No new precedent was established; rather, the Court clarified the application of existing CJEU case law and domestic precedent in this context.