Sarmiento and Sharpston view Zambrano (C-34/09, EU:C:2011:124), which caused a stir because of the substance of rights test, as a “high-water mark” in the CJEU’s jurisprudence. Thereafter, the court began to suffer from “citizenship exhaustion” and the “test was shelved under the section reserved for judgments of last resort to be used in exceptional circumstances only” because of the restrictive approach taken in Dereci (C-256/11, EU:C:2011:734) and O and B (C-456/12, EU:C:2014:135). In Zambrano, which like Rottman (C-135/08, EU:C:2010:104) concerned a purely internal situation, the CJEU held that article 20 TFEU precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. The appeals of Patel and Shah provide the Supreme Court with the opportunity to address the question whether the decision in Chavez-Vilchez (C-133/15, EU:C:2017:354, discussed here) has altered the approach to the question of derivative claims for residence in the UK by those without rights of residence, based upon their care of British citizens who are their “direct relatives”. Chavez-Vilchez concerned eight third-country national mothers of EU citizen children. By contrast, both of Mr Nilay Patel’s parents are British citizens. He is an Indian national who entered the UK as a student. But he provides primary care to his elderly father who suffers from final stage kidney disease.
His mother has a heart problem and suffers from poor mobility owing to very poor knee function. Mr Patel’s application for ILR outside the rules was refused and the appeal was dismissed. Mr Adil Shah is a Pakistani national. He entered the UK as a student and is the primary carer for his British citizen child. His wife is a British citizen and works full-time. Mr Shah’s student visa was revoked and he was unsuccessful in his human rights claim. Both applied for a derivative residence card under regulation 15A of the then Immigration (European Economic Area) Regulations 2006 whereby, in order to implement Zambrano, a non-EU citizen is entitled to a derivative right to reside in the UK if they are a primary carer of a British citizen residing in the UK and the British citizen would not be able to reside in the UK or another EEA state if the non-citizen were made to leave. The decision-maker refused to grant a residence card in both cases on the basis that the relatives they cared for would not be forced to leave the UK if the appellants left. Both the FTT and the UT allowed Mr Shah’s appeal. However, both tiers of the tribunal dismissed Mr Patel’s appeal. The Court of Appeal subsequently held that Chavez-Vilchez did not alter the Zambrano principle and Irwin LJ found that reported cases in England that implement Zambrano but pre-date Chavez-Vilchez do not hold diminished authority.
In Ayinde and Thinjom  UKUT 560 (IAC) the UT held the third country national must establish as a fact that the British citizen “would be forced to leave the territory of the European Union”. This view gives a narrow and literalist approach to the test of inability – that the British citizen would be “unable” to remain in the UK/EEA if the third country national left – laid down in regulation 15A. Thus, Mr Patel argued in the Court of Appeal that regulation 15A cannot reflect Parliament’s intention when applying the Zambrano principle to the position of cared-for adults.
In O and L (C-356/11 and C-357/11, EU:C:2012:776), the CJEU held that the derivative right is “specific in character” that only arises “exceptionally” where the “effectiveness of the Union citizenship enjoyed by that national would otherwise be undermined”. Thus, it is engaged in “situations characterised by the circumstance that the Union citizen had, in fact, to leave”.
The Court of Appeal
Lindblom, Irwin and Thirlwall LJJ considered Chavez-Vilchez to only be a mere reminder that the Zambrano principle has to be carefully applied, with a focus on whether the EU citizen child or dependant could remain in the UK in practice, not just in legal theory. They unanimously held that the test of compulsion remained unaltered. Furthermore, marriage to a British citizen did not bring automatic residence in the UK for the spouse and the Zambrano principle could not be regarded by non-EU citizens as a back-door route to residence in the UK. The government pointed out that CJEU authority after Zambrano and before Chavez-Vilchez distinguished between “choice” and “compulsion” in accordance with the Zambrano principle.
Irwin LJ observed that CJEU case law before Chavez-Vilchez differentiated between cases where both parents, or the single parent with care of a child or children, were leaving the EU, and cases where one parent in a family could remain. The departure of both parents from Belgium in Zambrano would in practice compel the departure of their very young children, thereby inevitably depriving them of their EU citizenship rights. The mother in Dereci had Austrian citizenship. If she chose to remain in Austria, her children could remain. If they left Austria, it was an exercise of choice to keep the family together but not a deprivation of rights by compulsion. That distinction stood despite the consideration of family life enshrined in article 7 of the Charter of Fundamental Rights of the European Union and the rights of the child enshrined in article 24 and the Court of Appeal did not think that these cases were capable of any other explanation.
English authority on the point was no different and in Harrison  EWCA Civ 1736, a deportation case involving the application of Zambrano, Elias, Ward and Pitchford LJJ agreed with the government that there is no basis for asserting that it is arguable that the Zambrano principle extends to cover anything less than a case where the EU citizen is forced to leave the territory of the EU. Elias LJ said that Zambrano had “removed the requirement for even an exiguous cross-border link” before the principle applied. After analysing Dereci he found that the CJEU did not accept that an impediment of the right short of denial might be covered by the scope of the principle and instead found that jeopardy caused to family life or any adverse economic impact on the family do not suffice. The CJEU also said that national courts must determine whether, as a matter of fact, an EU citizen would be compelled to join an ascendant family member denied the right to remain in EU territory.
Elias LJ judged in Harrison that if the EU citizen, whether child or wife, would not in practice be compelled to leave the country if the non-EU family member were refused the right of residence, nothing in the authorities suggested that EU law is engaged. As recognised in Dereci, article 8 of the ECHR, which forms an entirely distinct area of protection, may then enter the equation to protect family life and Elias LJ observed that the CJEU’s approach fully accounted for the considerable financial, emotional or psychological impact on the family life of those affected. He held that quality of life might be significantly diminished, while the substance of the right of residence was preserved and he rejected the EU grounds of appeal. In Sanneh  EWCA Civ 49, Elias LJ followed this approach and held that the Zambrano principle did not “guarantee any particular quality of life”. Considering matters on appeal in R (HC)  UKSC 73 (discussed here), the Supreme Court explicitly approved of Elias LJ’s judgment in Harrison.
Irwin LJ observed that in Chavez-Vilchez the CJEU reconfirmed that the question was whether the EU citizen children would, in practice, be compelled to leave the EU if their non-EU mothers were obliged to leave EU territory – a question of fact in each case turning on who has custody of the child and whether that child is legally, financially or emotionally dependent on the non-EU parent. The national court was seeking guidance on the application of Zambrano rather than seeking to develop new principle. Hence Irwin LJ found that the “underlying principle in Zambrano is undisturbed by Chavez-Vilchez” and in the latter case the referring court was looking for guidance in circumstances where a child was dependent on one non-EU parent with no right of residence; circumstances in which the state must ensure a careful process of enquiry. None of the children in Chavez-Vilchez lived in family units with parents living together and in each instance the context was pegged to the factual basis that if the non-EU citizen mother leaves and the EU citizen father remains, will the EU citizen child be compelled, in practice, to leave? The CJEU said that in “very specific situations” a right of residence must nevertheless be granted to a non-EU family member of an EU citizen even though Directive 2004/38/EC, or the Citizens’ Directive, does not apply. Thus, the test of compulsion remained unaltered and Irwin LJ held:
74. It follows in my view that Chavez-Vilchez does not represent any kind of sea-change to the fundamental approach to be taken. It does not mean that English reported cases implementing Zambrano but pre-dating Chavez-Vilchez (such as Harrison, and Sanneh) hold diminished authority.
The court remarked that in Mr Shah’s case (and in the case of Mr Bourouisa, who was involved in earlier proceedings) the strength of family life was supported by “impressive evidence”. Irwin LJ appreciated that sensible people would wish to maintain the unity of their family but he nevertheless held that:
75. … However, recognition of that does not alter the fact that however hard such a choice may be, it is a choice, not a necessity, not compulsion. In my judgment the evidence in each of these two cases is clear that were the British parent to remain, they would be able to care for the children concerned perfectly well. The child citizen would be under no compulsion to leave the EU.
76. Quite a number of years ago, Parliament chose to abrogate the historic approach that marriage to a British citizen would bring, in effect automatically, residence in Britain for the spouse. No such automatic consequence now follows, see section 6(2) of the British Nationality Act 1981 and section 2 of the Nationality, Immigration and Asylum Act 2002. Those who marry a British citizen and have children, without having (or acquiring) leave to remain, do so at the risk that they may be compelled to leave the country, facing the real quandary that arises for these families. The Zambrano principle cannot be regarded as a back-door route to residence by such non-EU citizen parents.
While praise was due to Mr Patel for his parents’ “admirable care” it was clear that “compulsion” was the key question, albeit the “choice” was a difficult one because of the upheaval caused by relocation to India. If his parents followed him to India – which was inevitable – that was a part of “their cultural and individual commitment to each other” which was “choice not compulsion”. Overall, on the evidence, Mr Patel’s situation was “was too equivocal to amount to compulsion, however one looked at the matter” and respect for the right to family life was not construable as a “trump card” ensuring unrestricted protection.
In the Supreme Court, the government submitted that the Zambrano principle “exists at the very edge of EU law” whereas the appellants argue that it is not necessarily restricted only to “exceptional cases” because of the centrality of EU citizenship which “is destined to be the fundamental status of nationals of the member states” under the CJEU’s case law (a development which, for example, Sarmiento and Sharpston describe as one of the EU’s “most symbolic endeavours” constituting “a tectonic shift in the civil landscape”).
The appellants argue that in Zambrano the court made a value judgment not just a factual judgment. The very young children would leave the EU and the Colombian parents would choose on their Belgium children’s behalf to take them outside the EU. Thus the question to ask is whether the non-EU citizen’s departure would leave the EU citizen with any real choice in the matter? Such a situation opens up a broader inquiry and this is said to be “lurking under the surface”. In Chavez-Vilchez the question was whether the fact that the child is not entirely legally, financially or emotionally dependent, on the third-country national parent was relevant to the issue of article 20 TFEU precluding a member state from refusing a right of residence in its territory to that parent.
During the course of proceedings, Lord Sales remarked that in line with Dereci the desirability of keeping the family together is not good enough for EU law as it falls short of the type of compulsion underpinning the outcome in Zambrano. Despite that point, it is the case that the Dutch government accepted that Chavez-Vilchez changed the state of play to the extent that the burden of proof shifted on to the authorities to investigate whether the EU citizen parent’s divorce from the third country national has any negative effects on the child; the net result being that the latter had a greater chance of being granted a right of residence.
Equally, the point made by Lord Sales is highly questionable in light of his own judgment in Amirteymour  EWCA Civ 353 where he held that it was not possible for a person to simultaneously argue article 8 rights together with EU law rights as the tribunal does not have any jurisdiction to hear the former in the absence of removal directions or a section 120 notice if a Zambrano residence right has been sought pursuant to the regulations. Accordingly, in EEA appeals, the sole ground of appeal is that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to and residence in the UK.
Significantly, the case of KA (C-82/16, EU:C:2018:308) further demonstrates that the Zambrano principle also applies to dependent adults, and not just to children, in exceptional cases where in light of a fact specific analysis “there could be no form of separation of the individual concerned from the member of his family on whom he is dependent.” The appellants recognise the limits set out by the CJEU’s reasoning but nevertheless submit that the approach does not establish a test of exceptionality and the court was merely stating that adults are not dependent on each other in quite the same way that children are dependent on adults.
In Harrison it was the view of Elias LJ that the Zambrano doctrine would apply and still protect the EU citizen’s rights where the quality or standard of life will be seriously impaired by excluding the non-EU national with the result that the EU citizen will be effectively compelled to give up residence and leave with the non-EU national. In MS (Malaysia)  EWCA Civ 580, the approach taken in Harrison was applied to an adult non-EU carer whose departure from the UK would mean that her sick and elderly British mother would need to leave with her since the care provided by the daughter was irreplaceable. Overall, he FTT had allowed the appeal and the UT had dismissed the government’s appeal and it was argued that the UT had wrongly addressed the question whether the mother would “feel compelled to leave”. Both tiers of the tribunal were fully aware that the key question was whether the facts which they were evaluating crossed the threshold identified in Harrison and Patel and the CJEU cases between “choice” and “compulsion”.
In MS (Malaysia) the complaint was rejected that the UT substituted a subjective analysis for the test required by the regulations, which required actual compulsion, assessed objectively. Delivering the court’s unanimous judgment, Floyd LJ found “superficial attraction” to the government’s stance but rejected it as invalid because the UT was “conducting a perfectly proper, global, objective assessment, taking account of the evidence of MS and DK and all the other surrounding circumstances.” In the present context, Mr Patel provides his parents irreplaceable care but unlike the mother DK in MS (Malaysia) his father, who needs dialysis, has not made a direct statement that he will leave the UK if his son does (by contrast DK had said in her oral evidence that she could not be without her daughter, i.e. she would leave if her daughter left).
The appellants are of the view that Irwin LJ misstated the test by applying a rigid test of the British citizen being “unable to care” (at paragraph 77) for the child and therefore being compelled to leave along with the non-EU citizen. The CJEU had espoused a different test in Chavez-Vilchez (at paragraph 71) whereby the EU citizen’s ability and willingness to assume sole responsibility for the primary day-to-day care of the child is a relevant factor in the assessment but is a not a sufficient ground for concluding that the non-EU parent and the child do not have a such a relationship of dependency that the child would be compelled to leave the EU if a right of residence were refused to the non-EU parent. On behalf of the intervening AIRE Centre, Mr Drabble QC submitted further that the Court of Appeal’s distinction between choice and compulsion was too narrow a test to enunciate, especially in light of the approach in Chavez-Vilchez which provides the building blocks that the domestic court must answer in reaching its decision.
Mr Drabble QC also submitted that Harrison lies at “the outer extreme of EU law” and it did not concern whether the partner or children would also leave the EU upon the father’s deportation to Jamaica, it only concerned whether the children’s right of residence would be rendered less enjoyable upon the father’s deportation. Indeed, his argument is that if the child’s departure is a natural consequence of refusing the parent a residence right, then the choice or compulsion debate becomes redundant and the right approach is to consider the child’s best interests in line with paragraph 71 of Chavez-Vilchez which requires the examination of:
all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium.
In conducting the assessment the domestic court must evaluate who the primary carer is and whether there is a relationship of dependency. The ability of the EU parent to care for the child does not automatically negate the dependency on the non-EU parent and it is for member states to assess cases in line with the principles found in paragraph 71 of Chavez-Vilchez extracted above. Nevertheless, the government takes the rigid position that the judgments in Chavez-Vilchez and KA both reconfirm and fortify the exceptional nature of the Zambrano doctrine which demands that nothing less than a test of compulsion will suffice and only applies where the EU citizen will be forced to leave EU territory.
Notably, by virtue of HC 1919 the Home Office decided to “protect” the long-term status of Zambrano carers by bringing them within the scope of the EU Settlement Scheme, which is free in comparison to an article 8 application which now costs £1,033 and also entails a £1,000 immigration health surcharge. Moreover, Appendix EU defines a person who has a Zambrano right of residence as someone “without leave to enter or remain in the UK granted under another part of these Rules”.
Equally, the latest guidance on derivative rights of residence (version 5.0) specifies that “Zambrano is not a back door route to residence” and relying on Patel it argues that if the applicant does not have leave to remain or has not applied for leave to remain then any application for a Zambrano right of residence should be refused because the decision will not force the British citizen to leave the UK. In other words, a Zambrano application must be automatically refused if the applicant has never applied under Appendix FM of the Immigration Rules or made any other article 8 claim.
The post-Patel policy provides that caseworkers must consider whether a derivative right of residence exists only if an applicant has made an application under Appendix FM or any other article 8 claim which was refused and recently exhausted their appeal rights.