The Court of Appeal in in SSHD v VM (Jamaica)  EWCA Civ 255 has confirmed a restrictive interpretation of the Zambrano line of EU case law.
The case concerned a Jamaican national who was fighting deportation to Jamaica after being convicted of a string of criminal offences. He had a relationship with a British Citizen partner, and a British Citizen stepson. He sought to argue that to deport him would deprive his British Citizen stepson of his rights as an EU citizen as they would have to leave the UK to live in Jamaica.
The Court of Appeal dismissed these arguments. They held that if a third country national with EU citizen children faces deportation then the EU rights of the child as an EU citizen will only be engaged if they are compelled to leave the EU as a result of the third country national’s deportation.
They found in this case that even if the appellant were deported to Jamaica there would still be a carer with a right to reside in the UK as a British Citizen and that:
Rather than a legal impossibility of remaining in the UK, the family would face a difficult practical choice whether to separate (with the mother and children remaining in the UK, in which case there would be no infringement of their EU citizenship rights) or to leave and go to Jamaica as a family unit
As such, this did not engage EU rights in a way which created a right under EU law for the appellant to remain in the UK.