The Upper Tribunal has delivered its error of law determination in the important case of Secretary of State for the Home Department v. CS. In so doing, it is the first case to consider the application in domestic law of the judgment of the CJEU Grand Chamber on its earlier reference in Case C-304/14 Secretary of State for the Home Department v. CS  2 WLR 180 (linked to Case C-165/14 Rendon Marin v Administracion del Estado  2 WLR 117. Both cases raised the question whether it is permissible to derogate from citizenship rights under Article 20 of the Treaty on the Functioning of the European Union, as interpreted in Case C-34/09 Zambrano, in situations where a third country national parent of an EU citizen child engages in criminal conduct.
The Court accepted the position of the United Kingdom Government that it is possible, in principle, to derogate from such rights. The test to be applied in such circumstances is whether the measure in question is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or public security. This is a question for determination by the national court. The national court must carry out a specific assessment 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 fundamental rights. That 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.
The Tribunal considered the application in domestic law of those tests. It was argued by the respondent, CS, that the domestic regime of automatic deportation was incompatible with EU law in such cases. The Tribunal rejected that argument. It also rejected the argument that the Secretary of State could rely solely on the existence of past criminal conduct in order to demonstrate a genuine, present and sufficiently serious threat. In so doing, it gave important guidance on the continuing application of the principle in Case 30/77 R v. Bouchereau  1 QB 732.
The Tribunal found that the original First-tier Tribunal determination was flawed by a series of errors of law. It set it aside. The re-hearing will take place later in the year.
David Blundell appeared on behalf of the Secretary of State. He also appeared on behalf of the United Kingdom in both CS and Rendon Marin before the Grand Chamber of the CJEU.