The issue at hand was whether a Zambrano carer could only be deported in “exceptional circumstances” only.
The Supreme Court unanimously dismissed the appeal: the CJEU had not imposed an exceptional circumstances test in their jurisprudence.
Three questions need to be addressed:
- Is there a relationship of dependency such that the EU citizen would be compelled to leave the Union with the third country national (TCN)?
- Is there a genuine, present and sufficiently serious threat to the requirements of public policy or of public security?
- What does proportionality require?
The Supreme Court held that the CJEU had not supported an ‘imperative grounds’ test (Article 28(3)) in S v Secretary of State for the Home Department (Case C-304/14) EU:C:2016:674; [2017] QB 558 (“CS”). Rather, the CJEU had recognised an exception to the Zambrano principle “linked, in particular, to upholding the requirements of public policy and safeguarding public security” [51].
It was held that the phrase “exceptional circumstances” refers to “an exception to the general rule that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the territory of the EU” [61] rather than an additional hurdle that had to be cleared.