Zambrano carers: The test of compulsion is a practical test

Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019)

Addressing the scope of the substance of rights test devised in Zambrano (C-34/09, EU:C:2011:124), whereby a non-member state national (or a third country national “TCN”) parent of an EU citizen child resident within the EU is entitled to reside in the EU, the Supreme Court has held that in Patel [2017] EWCA Civ 2028 the Court of Appeal was wrong to include the question of choice into the assessment of compulsion. Lady Arden held that the test of compulsion is a practical test which needs be applied to the actual facts rather a theoretical set of facts. The court also held that Chavez-Vilchez (C-133/15, EU:C:2017:354), which is purely a children case, does not relax the level of compulsion required in the case of adults. The Home Office submitted that the Zambrano principle “exists at the very edge of EU law”. The appellants, Mr Patel and Mr Shah argued that the doctrine 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 Grzelczyk (C-184/99, EU:C:2001:458). Mr Patel, an Indian national who entered the UK as a student, provides primary care to his elderly British father who suffers from final stage kidney disease. His British mother has a heart problem and suffers from poor mobility because of very poor knee function. Mr Patel’s application for ILR outside the rules was refused and the appeal was dismissed. 

A Pakistani national who entered the UK as a student, Mr Adil Shah is the primary carer for his British citizen child. His wife is a British citizen and works full-time. 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 TCN 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 TCN were made to leave. The Home Office 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. 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, Lindblom and Thirlwall LJJ found that reported cases in England that implement Zambrano but pre-date Chavez-Vilchez do not hold diminished authority.

The Court of Appeal opined that Chavez-Vilchez was a mere reminder that the Zambrano principle has to be carefully applied, with a clear focus on whether the EU citizen child or dependant could remain in the UK in practice, not just in legal theory. Holding that Mrs Shah could look after the son in the UK, the court felt that that the test of compulsion to leave the UK was not satisfied.

The Supreme Court

In this judgment, Lady Hale, Lord Carnwath, Lord Briggs, Lady Arden and Lord Sales unanimously allowed Mr Shah’s appeal and dismissed Mr Patel’s appeal. The court said that the right of residence is a “derivative right” which is derived from the dependent EU/UK citizen. The basis of this derivative right turns on the deprivation of the benefits of EU citizenship as a result of him/her being compelled, by the TCN’s departure, to leave EU territory. Giving the sole judgment Lady Arden prefaced the court’s views by noting that the present case concerned “the nature or intensity of that compulsion.” 

Article 20 TFEU is a Treaty right which establishes EU citizenship. Everyone holding the nationality of a member state is an EU citizen and such citizenship is additional to and does not replace national citizenship. EU citizens enjoy the rights and subject to the duties provided for in the Treaties, they have the right to move and reside freely within the territory of the member states. Explaining that EU citizenship “lies at the heart of the European legal architecture”, Lady Arden explained that UK law does not give too much prominence to distinction between citizenship of, and nationality within, the UK but that under the TFEU people may possess both EU citizenship and member state nationality (a Treaty right which is a dynamic concept). In Agyarko [2017] UKSC 11 (discussed here), the Supreme Court held that article 20 does not confer any rights on a TCN. 

The right to family life is enshrined in article 7 of the Charter of Fundamental Rights of the European Union and the rights of the child are enshrined in article 24. Notably, article 7 of the CFR reflects article 8 of the ECHR. Further, under article 25 of the CFR, the EU recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.

The CJEU’s judgment in KA v Belgium (C-82/16, EU:C:2018:308), which was delivered after the Court of Appeal’s judgment in Patel, emphasised the importance of the right to EU citizenship and stated that a TCN might acquire a derived right of residence if their removal could deprive an EU citizen of their citizenship rights. In KA, the CJEU drew a distinction between the case of an EU citizen who is an adult and one who is a child. 

The entitlement of a TCN to reside in the EU is limited by the requirement that the TCN’s derived right of residence is only provided to ensure the effectiveness of the EU citizen’s rights. In KA (para 51), keeping in mind the approach in Zambrano (paras 43 and 44) and Chavez-Vilchez (para 63), the CJEU judged that in “very specific situations” a TCN may have a right of residence if the EU citizen would otherwise be obliged to exit EU territory and be deprived of the genuine enjoyment of the substance of the rights conferred by EU citizenship. However, the CJEU said that must be a “relationship of dependency” between the EU citizen and the TCN. Moreover, a TCN could have a relationship of dependency with an adult EU citizen capable of justifying a derived right of residence under article 20 TFEU only in “exceptional circumstances” (para 65). Lady Arden discerned that in both Chavez-Vilchez and KA the CJEU relied on Dereci (C-256/11, EU:C:2011:734) as one of the authorities for the requirement of compulsion. Dereci clearly remained unqualified by the decisions in Chavez-Vilchez and KA and it was held in Dereci that in order for a TCN to have a derived right pursuant to article 20 TFEU, the circumstances must be such that if the TCN is removed the EU citizen would in fact depart with them. Her Ladyship also explained that the CFR cannot extend the application of EU law, which imposes limits on the entitlement to derivative residence rights, and she held that: 

22. What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the TCN, with whom the Union citizen has a relationship of dependency, is removed. As the CJEU held in O v Maahanmuuttovirasto (Joined Cases C-356/11 and C-357/11) [2013] Fam 203, it is the role of the national court to determine whether the removal of the TCN carer would actually cause the Union citizen to leave the Union.

In KA the CJEU drew on its earlier decision in Chavez-Vilchez and said that in the case of children, it is first necessary to determine who the primary carer is, and whether there is a relationship of dependency with the TCN or the national parent. Chavez-Vilchez involved several TCN mothers, whose children were Dutch and who claimed a derivative right of residence in the Netherlands. The claims were rejected on the basis that the fathers of the children were also Dutch. Some of the fathers were involved in their child’s upbringing but they lived apart from the child’s mother. They were not the primary carer. The CJEU rejected the view that the mother’s claim for residence was negated by the proposition that the father could in theory become the child’s carer. The national court had to assess whether the child would be compelled to leave the EU. In making that decision, the national court had to take into account all the circumstances, including the best interests of the child. 

In Chavez-Vilchez and KA the CJEU identified (para 71 and para 70 respectively) that in arriving at a conclusion on whether the requirement for compulsion is fulfilled, regard must be had, in the best interests of the child concerned, of all the specific circumstances in the case, including the age of the child, the child’s physical and emotional development, the extent of his or her emotional ties both to the EU citizen parent and to the TCN parent, and the full risks which separation from the TCN parent might entail for that child’s equilibrium. The approach in Chavez-Vilchez was fact specific. It concerned separated parents where the EU parent was not the primary carer and the EU citizen child was dependent on the TCN mother. Thus, no direct analogy arose with the Shah case where the family lived together and the TCN father was the primary carer upon whom the child depended. Even so Mr Shah was the primary carer and so the need for a relationship of dependency with the TCN was fulfilled and Chavez-Vilchez held (para 70) that the quality of that relationship is a relevant factor in determining whether the child is compelled to leave the jurisdiction. 

The Supreme Court did not agree that the reference to the need to consider the child’s best interests pointed to a shift in the law. Lady Arden disagreed that the CJEU had refined or diminished the requirement that there has to be compulsion to leave the EU. Rejecting the idea that diminution would enable consideration to be given to desirability of the family remaining together and to respect for family life (even in the case of adults), Lady Arden held that:

27. I do not consider that this deduction can be made. In Chavez-Vilchez, the CJEU were concerned with the case of a child and it is clear from KA that the case of a child is quite separate from that of an adult and that in the case of an adult it will only be in “exceptional circumstances” that a TCN will have a derivative right of residence by reference to a relationship of dependency with an adult Union citizen. An adult Union citizen does not have a right to have his family life taken into account if this would diminish the requirement to show compulsion to leave. It must be recalled that in KA the CJEU effectively reaffirmed the need to show compulsion even after making it clear that the decision in Chavez-Vilchez was good law. Accordingly, Chavez-Vilchez does not relax the level of compulsion required in the case of adults, and thus provides no assistance to Mr Patel, whose appeal must therefore fail.

Thus her Ladyship rejected the argument that in evaluating when a person was compelled to leave the EU, regard would be had to a person’s family life and what he would have to do to maintain that family life. Chavez-Vilchez is about children. KA clarified that children and adults are treated separately and a TCN will only have a derivative right of residence by reference to a dependant relationship with an adult EU citizen in exceptional circumstances.

Lady Arden added that in fact Chavez-Vilchez had no impact on Mr Shah’s appeal and his appeal’s outcome turned on the findings of fact by the FTT and on whether the Court of Appeal correctly identified the relevant findings for the purposes of the test of compulsion. 

The FTT found that Mr Shah was the primary carer of his infant son and that the child had the relevant relationship of dependency with the father (whose evidence was that if he were removed from the UK then the whole family would leave the EU). Furthermore, Mrs Shah’s evidence, that if Mr Shah was not allowed to stay in this country they would relocate as a family, was also unchallenged. The FTT accepted this evidence and held that it was “an inescapable conclusion” that the son would have to leave with his parents. Therefore, the FTT found the requirement of compulsion was met. The Court of Appeal introduced into the question of whether the infant son was compelled to leave the fact that Mrs Shah’s decision to leave was her own choice, and that she, like her husband, would have been “perfectly capable of looking after the child” (para 79). Irwin LJ considered that it followed that there was no question of compulsion. 

The Home Office relied on the Court of Appeal’s approach to argue that Mrs Shah simply wished to keep the family together and that reliance on a desire for family reunification was on the CJEU authorities insufficient to justify a derivative right of residence. Lady Arden rejected the submission and held that the overarching question remained whether the son would be compelled to leave because of his relationship of dependency with his father. Her Ladyship added that the court must answer this question in line with para 71 of Chavez-Vilchez and she concluded that:

30. … The test of compulsion is thus a practical test to be applied to the actual facts and not to a theoretical set of facts. As explained in para 28 of this judgment, on the FTT’s findings, the son would be compelled to leave with his father, who was his primary carer. That was sufficient compulsion for the purposes of the Zambrano test. There is an obvious difference between this situation of compulsion on the child and impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card. It follows that the Court of Appeal was wrong in this case to bring the question of the mother’s choice into the assessment of compulsion.

31. … I consider that the Court of Appeal made an error of law when it treated as determinative what could happen to Mr and Mrs Shah’s son if the father left the UK, rather than what the FTT had found would happen in that event. In other words, it was not open in law to the Court of Appeal to hold that Mr Shah had no derivative right of residence because the mother could remain with the child in the UK even if the father was removed.

The Supreme Court therefore allowed Mr Shah’s appeal and dismissed Mr Patel’s appeal. 

Comment 

These proceedings had entered the Supreme Court to address the point whether Chavez-Vilchez altered the approach to the question of derivative claims for residence in the UK by those without rights of residence. Lady Arden’s answer could not have been clearer since Chavez-Vilchez had no impact on Mr Shah’s appeal and no direct analogy arose with it. Equally, the Chavez-Vilchez ruling did not relax the level of compulsion required in the case of adults and failed to assist Mr Patel whose appeal failed. The test of compulsion is a practical test. With the UK now set to leave the EU on 31 January 2020, under the EU Settlement Scheme, Zambrano carers have until 30 June 2021 to apply to obtain settled or pre-settled status if the UK leave the EU with a deal and 31 December 2020 if the UK leaves the EU without a deal. After Brexit, the UK will enter into a transition period until 31 December 2020 during which the UK-EU trade relationship will remain intact until a free trade deal is negotiated. 

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appendix EU, Article 8, Brexit, CFR, Citizenship and Nationality, CJEU, European Union, EUSS, Human Rights, Settlement, UKSC and tagged , , , , , , . Bookmark the permalink.

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