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Court of Appeal Rules on Zambrano Carers in RM (Pakistan)

The Court of Appeal has recently issued a judgement in the case of Secretary of State for the Home Department vs RM (Pakistan) [2021] EWCA Civ 1754 relating to ‘Zambrano’ carers where the person claims to derive a right to reside in the UK as the primary carer of an adult British citizen.

A ‘Zambrano’ carer is a person who is the primary carer of a British child or dependent British adult who would be unable to continue to reside in the EU if they were to leave the UK. It derives from the CJEU ruling in the case of Ruiz Zambrano (Case C‑34/09), summarised here. ​

Although the UK has now left the EU, people may still be eligible for status under the EU Settlement Scheme if they were in the UK with a ‘Zambrano right to reside’ prior to 30 December 2021. Depending on the outcome of the Akinsanya litigation, many others currently in the UK with leave to remain on another basis may also qualify under the EU Settlement Scheme.

Background to RM (Pakistan)

The sole disputed issue in this case was whether the relevant British citizen (‘A’) would be ‘compelled’ to leave the UK (and the EU as a whole), if his brother and primary carer, ‘RM’ were required to leave. 

Previous case-law had drawn a distinction between children, who will effectively be required to follow their primary carer if they had to leave the UK due to the level of dependency on them; and adults who generally are able to live an independent existence from their family members.

The CJEU found in KA and Others, that in relation to adults, the relationship of dependency required in order to justify a derived right of residence is ‘conceivable only in exceptional cases where, in the light of all the relevant circumstances, any form of separation of the individual concerned from the member of his family on whom he is dependent is not possible’

Facts of the case in RM (Pakistan)

RM is a Pakistani citizen who is the adult brother and primary carer of A, an adult British citizen. His application for a derivative residence card was refused by the Secretary of State for the Home Department (‘SSHD’).

A has a number of severe disabilities, which mean he has restricted mobility and is confined to a wheelchair. He requires help washing and dressing himself. He suffers, intermittently and unpredictably, from incontinence and a numbness in his body which leaves him unable to move unaided. This can happen at night and when it does, his brother will assist him. He has depression and anxiety. He takes strong medication which causes significant side effects including drowsiness. He has suffered a number of falls as his legs can become numb and ‘go’ from under him and he therefore does not go out alone.

A is a local councillor in his neighbourhood in Yorkshire and disability officer for his constituency Labour Party. RM assists A to fulfil his duties and responsibilities.

Bradford Social Services provided evidence that if RM were to depart, they could only provide a care package during the day or at time-specific night-time appointments. Evidence was provided regarding the cost of privately paying for night-time carers, care homes, and a live-in care package; and A’s inability to afford this.

Litigation History of RM (Pakistan)

The First-tier Tribunal dismissed RM’s appeal, finding that although it was A’s preference that RM cared for him, there were practical alternatives available to him and the evidence did not demonstrate that A required constant care throughout the night.

RM appealed and UTJ Bruce found that the First-Tier Tribunal made errors of law in failing to take into account relevant evidence. He remade the decision in RM’s favour. The SSHD then appealed to the Court of Appeal.

Court of Appeal determination in RM (Pakistan)

The judgment of Lady Justice Simler (with whom the other judges agreed) focused on three main issues, and she ultimately allowed the SSHD’s appeal, remitting the case for rehearing at the Upper Tribunal.

Test for compulsion – not sufficient if it is a ‘choice’

The Court of Appeal considered that UTJ Bruce had fallen into error by accepting A’s subjective choice to leave the UK with RM as conclusive of whether he would be compelled to leave. UTJ Bruce described this choice as rational, understandable and legitimate. However, she did not objectively assess whether he would actually be compelled to leave, separately to his choice to do so to continue to be cared for by his brother.

In line with the case law in KA and Patel and Shah, the Court of Appeal reiterated that the person must in practice be compelled to leave the UK if their primary carer were to leave. If an adult chooses to leave as they prefer to be cared for by their primary carer outside the UK, this will not be sufficient. It is only if they have no practical choice but to leave due to a lack of other practical alternatives, that the test will be met. This must be objectively assessed in light of all of the relevant circumstances.

Consideration of what the British citizen intends to do is a relevant consideration but cannot be determinative of whether they would be compelled to leave. It is a necessary precondition that they intend to leave, as if they plan to remain in the UK without their primary carer the test for compulsion will clearly not be met.

Private life not a relevant factor when assessing compulsion to leave

The Court of Appeal found that UTJ Bruce also fell into error by wrongly taking into account the effect of RM leaving on A’s private life, in performing roles as a local councillor and disability officer. She considered that there would be a negative impact on A’s ability to continue his public roles in RM’s absence and which would make his life less fulfilling. However, in line with Patel and Shah:

‘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’ 

Availability of social services care

The SSHD argued that the local authority had a legally enforceable duty to meet A’s care and support needs, as any failures could be challenged by way of judicial review. As such, it was argued that UTJ Bruce made an error of law in accepting that Bradford Social Services would be unable to provide appropriate care for A.

The Court of Appeal rejected this, and referred to its previous decision in MS (Malaysia):

availability of state care is not, however, to be treated as a trump card in every case, irrespective of the nature and quality of the dependency on the carer. Just as the availability of an EU citizen parent to be a carer of a minor child does not render unnecessary an enquiry into the nature of the dependency of the child on her non-EU parent (see Chavez-Vilchez), the availability of state care does not avoid the need to enquire into the actual dependency of the British citizen on her adult carer.’

There was comprehensive evidence from Bradford Social Services about their ability to provide state medical and social care. The judge considered that this would not meet A’s care needs, in view of his night-time numbness and incontinence being at unpredictable times, which therefore could not be managed through designated night-time appointments. A had also provided evidence of his inability to afford private care. The SSHD had not challenged any of this evidence.

This reflects the practical but sad reality that the State may not always be able to meet a person’s care needs. 

Comment on RM (Pakistan)

This judgement is the latest in a line of case-law on the test of compulsion set out in Zambrano and reiterates the high threshold that must be met in relation to primary carers of adults. The nature of the test can lead to harsh consequences. 

Even if it is a rational, understandable and desirable choice for an adult to follow their primary carer abroad; if there are practical options enabling them to remain in the UK, even if these involve a reduced quality of life and loss of dignity, they will not be compelled to leave and the test will not be met.

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