Supreme Court ruling in Patel on Zambrano Carers
The Supreme Court delivered its long anticipated judgment on Zambrano carers in Patel v Secretary of State for the Home Department [2019] UKSC 59 on 16 December 2019.
Background
The appeal, consisting of two separate appeals – Patel and Shah, raised issues regarding the scope of the ‘Zambrano principle’ (outlined here). The Zambrano case permitted a non-member state national (third country national – “TCN”) parent of a European Union citizen child resident within the EU to reside in the EU. This was to avoid the EU citizen child being deprived of the substance of their Union citizenship rights on removal of the TCN parent from the EU.
Facts of Patel
Mr Patel is a TCN with no right to remain in the UK. He cares for his British parents. Mr Patel has been trained to help with his father’s kidney dialysis, and he cares for his immobile mother. Mr Patel’s parents are reliant on him. The medication required for dialysis may not be available in India.
The First-tier Tribunal (“FTT”) found that Mr Patel’s father would not return to India with Mr Patel; instead, he would continue to receive medical treatment in the UK, although that would not give him the same quality of life as Mr Patel’s care. Mr Patel’s invocation of Zambrano was unsuccessful at each stage of his appeal.
Facts of Shah
Mr Shah is a TCN primary carer of his British citizen son. His wife is also a British national. Mr and Mrs Shah live with their infant son. Mrs Shah works full-time. Whilst Mrs Shah works, Mr Shah cares for their son.
The FTT found that if Mr Shah were to return to Pakistan, Mrs Shah would accompany her husband. Their child would also leave the UK. As a result, the FTT and UT found that Mr Shah derived a right to remain. The CA disagreed and held that Mrs Shah could look after the son in the UK; the requirement for compulsion to leave the UK was therefore not satisfied.
Judgment of the Supreme Court
The Supreme Court unanimously allowed Mr Shah’s appeal and dismissed Mr Patel’s appeal.
The judgement of Lady Arden recognises that EU citizenship is a Treaty right, and that the Treaty article conferring citizenship, Article 20 TFEU, does not confer any rights on a TCN (R (Agyarko v Secretary of State for the Home Department [2017] 1 WLR 623) [§10].
The judgment summarised the CJEU’s conclusions in KA [2018] 3 CMLR 28, quoting §76 of KA, which states:
“… article 20 TFEU must be interpreted as meaning that:
– where the Union citizen is an adult, a relationship of dependency, capable of justifying the grant to the third-country national concerned of a derived right of residence under article 20 TFEU, 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;
– where the Union citizen is a minor, the assessment of the existence of such a relationship of dependency must be based on consideration, in the best interests of the child, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties to each of his parents, and the risks which separation from the third-country national parent might entail for that child’s equilibrium. The existence of a family link with that third-country national, whether natural or legal, is not sufficient, and cohabitation with that third-country national is not necessary, in order to establish such a relationship of dependency.”
The TCN’s derived right of residence is only to ensure that the EU citizen’s rights are effective. This limits the entitlement of a TCN to reside in the EU: the Supreme Court emphasised that there must be a “relationship of dependency” between the EU citizen and the TCN [§16].
Compulsion upon the EU citizen to leave the EU if the TCN were removed is key to Zambrano rights [§22], and it is the role of the national court to determine whether the removal of the TCN carer would in fact cause the Union citizen to leave the Union.
The Court of Justice recognised that there is a fundamental difference between the case of an EU citizen who is an adult and one who is a child (KA, § 76). The Supreme Court relied on KA’s distinction between the approach to adults and children. A TCN can have a relationship of dependency with an adult EU citizen sufficient to justify a derived right of residence only in exceptional circumstances (quoting KA, §65). What lies at the heart of the Zambrano jurisprudence is the requirement that the EU citizen be compelled to leave the EU territory if the TCN, with whom the EU citizen has a relationship of dependency, is removed [§22].
Regarding Mr Patel, the FTT concluded that Mr Patel’s father would not accompany him to India, he would remain in the UK. The Supreme Court found that any possible qualification Chavez-Vilchez [2018] QB 103] makes to the general principle of compulsion does not apply in the case of adults – Chavez-Vilchez is about children. KA makes clear that children and adults are treated differently 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 [§27].
For Mr Shah’s appeal, the FTT found that Mr Shah was the primary carer of his son, and that the family would be compelled to move out of the EU if he could not stay. The CA used the fact that Mrs Shah’s decision to leave the EU was voluntary and she could look after the child without Mr Shah to justify holding that there was no question of compulsion. The Supreme Court disagreed with the CA approach [§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. (emphasis added)
Comment
The decision incorporates the approach of the Court of Justice, in Chavez Vilchez, Dereci, KA, etc., and reflects the complex position of Zambrano carers.
The jurisprudence for the carers of children is now much closer to a human rights assessment than the (brief) Zambrano case itself, with a child’s ‘best interests’ and Article 7 of the Charter being relevant, as opposed to simply questions of Union citizenship and compulsion.
The Supreme Court Patel decision will help applicants more than the CA version – the Court of Appeal Patel case led to unhelpful updates to the Derivative Residence Card Guidance, set out here, requiring a Zambrano application to be only a last resort and mandating a refusal if a human rights application had not been made earlier. The Guidance has not yet been changed.
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