These joined appeals turned on what would happen to a British citizen if a family carer had to leave the UK. Under the EU citizenship rules then in force, a right of residence could arise if the citizen would, in practice, be compelled to leave the EU with the carer. The tribunal reached different findings about an adult parent and a young child.
The Zambrano principle
Lady Arden gave the unanimous judgment. In Zambrano, the Court of Justice had recognised that a person from outside the EU could acquire a right of residence derived from a Union citizen. The reason was to protect the citizen’s ability to remain in the Union. That could matter even where the citizen had never exercised free movement rights.
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The domestic provision was regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006. It applied where the applicant was the primary carer of a British citizen living in the United Kingdom, and that citizen would be ‘unable to reside’ in the United Kingdom or another EEA state if the carer were required to leave. Those words had to be interpreted compatibly with EU law so far as possible.
Mr Patel and his parents
Mr Patel provided substantial care for his British parents, including treatment for his father at home. The First-tier Tribunal found that, if Mr Patel left, his father would stay in the UK, where medical treatment and a care package were available. It accepted that the arrangements would affect the family’s quality of life. The Upper Tribunal and Court of Appeal upheld the result.
Mr Patel argued that compulsion had been assessed too rigidly. The poorer care his father would receive, his parents’ family life, and the rights of the elderly ought to have weighed more heavily. The Court disagreed. The Tribunal had found that the father would not leave, and it is for the national court to decide whether removal would actually cause the Union citizen to leave the Union. Treatment would still be available, though not at home and among his family. Mr Patel’s presence was desirable; it was not compulsion. The Court of Justice has held that dependency between an adult Union citizen and a family member can justify a derived right only in exceptional cases, where no form of separation is possible. Its later decision in Chavez-Vilchez, a case about children, does not lower that requirement for adults. Nor can the Charter of Fundamental Rights of the European Union extend EU law so as to create a wider right.
Mr Shah and his son
Mr Shah looked after his British infant son while his wife worked full time. The tribunal accepted that he was the child’s primary carer and that the family would move together if he had to leave. It found that he was entitled to a derivative residence card. The Court of Appeal reversed that decision because it considered that the mother could stay and care for the child.
The Court rejected that approach. The question was whether the son would be compelled to leave by reason of his dependency on his father. Where the Union citizen is a child, the Court of Justice requires the national court to take account, in the child’s best interests, of all the circumstances, including age, physical and emotional development, emotional ties to each parent, and the risk that separation from the non-EU parent would pose to the child’s equilibrium. The other parent’s ability and willingness to assume day-to-day care is a relevant factor, but it is not by itself enough to deny a relationship of dependency. Compulsion is a practical test applied to the actual facts, not to a theoretical set of facts. On the Tribunal’s findings, the son would leave with his father. That was sufficient. There is a difference between that result and an impermissible claim based only on respect for family life or the desirability of keeping the family together. It was also irrelevant that Mr Shah would have had no derivative right if Mrs Shah had remained: on the findings, that was not going to happen. The Court of Appeal erred in law by treating as determinative what could happen if the father left, rather than what the Tribunal had found would happen.
Verdict: The Court unanimously dismissed Mr Patel’s appeal and allowed Mr Shah’s. The tribunal was entitled to find that Mr Patel’s father would remain in the UK and that Mr Shah’s son would have to leave with his father.
Source: Patel v Secretary of State for the Home Department [2019] UKSC 59
