TR (Pakistan) v Secretary of State for the Home Department

For a derivative residence card under the Immigration (European Economic Area) Regulations 2006, proving that a third-country national is the primary carer of a British citizen is not enough. The applicant must also establish under Regulation 15A(4A)(c) that the British citizen would be unable to reside in the United Kingdom or another EEA state if the applicant had to leave. The burden lies on the applicant. Where accepted evidence showed that the British citizen had previously lived with, and would return to, her parents, with no evidence that they could not provide care, the Upper Tribunal was entitled to infer that the statutory condition was not met. Permission to appeal was therefore refused.

The applicant, a Pakistani citizen, sought a derivative residence card as the primary carer of his British wife, who had epilepsy and learning difficulties. The First-tier Tribunal accepted his unchallenged evidence and allowed his appeal. Deputy Upper Tribunal Judge Juss allowed the Secretary of State’s appeal, finding that the First-tier Tribunal had erred in relation to corroborative evidence and the requirement that the British citizen would be unable to reside in the United Kingdom or another EEA state if the applicant left. The applicant renewed his application for permission to appeal. The central issue was whether the preserved findings supported the latter requirement.

Application refused. Beatson LJ held that the application had no real prospect of success because the requirement in Regulation 15A(4A)(c) of the Immigration (European Economic Area) Regulations 2006 was not met.

1. The burden lay on the applicant to establish that his British wife would be unable to reside in the United Kingdom or another EEA state if he were required to leave. Establishing that he was her primary carer did not, by itself, satisfy that additional requirement.
2. The First-tier Tribunal’s accepted and preserved findings showed that the wife had lived with her parents before the marriage and would return to them if the applicant left. There was no evidence that her parents would be unable to care for her. It was therefore open to the Upper Tribunal to infer that Regulation 15A(4A)(c) was not satisfied. Although further evidence might have been preferable, the absence of it did not disclose an error of law.
3. Even if the First-tier Tribunal had been entitled to accept the evidence that the applicant was his wife’s primary carer, that issue could not overcome the failure to satisfy Regulation 15A(4A)(c).
4. The guidance stating that evidence from the NHS, local authority or private care provider may be submitted was not prescriptive and did not impose a mandatory form of corroboration. The possible flexible approach to points of law identified in Jones (Caldwell) v FtT & Criminal Injuries Compensation Authority [2013] UKSC 19 did not require a different result. The court would not have refused permission solely on that issue, which would have merited consideration in a full appeal, but the Regulation 15A(4A)(c) point was decisive. The applicant remained free to reapply with sufficient evidence.

Order: application refused.

• Court of Appeal (Civil Division): On 1 December 2015, the court refused the applicant’s renewed application for permission to appeal: [2015] EWCA Civ 1412.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Juss allowed the Secretary of State’s appeal, identified errors of law in the First-tier Tribunal’s decision, remade the decision and dismissed the applicant’s appeal.
• First-tier Tribunal: The applicant’s appeal against refusal of a derivative residence card was allowed after the tribunal accepted that he was his wife’s primary carer.