Zewdu, R (on the application of) v The Secretary of State for the Home Department

A primary carer of a British citizen may have a derivative right of residence where the child would be unable to reside in the United Kingdom or another EEA state if the carer were required to leave. The court must assess the evidence realistically. Speculation about alternative carers, or matters lacking sufficient substance to undermine the existing care arrangements, will not justify delaying or refusing recognition of the right. Excessive delay and the efficient use of public resources are relevant to an adjournment application. Where the evidence permits a fair decision, the court may determine the issue without further investigation.

The claimant, an Ethiopian national and sole carer of her British citizen son, sought judicial review of a decision granting her discretionary leave to remain on human-rights grounds but failing to determine her asserted derivative right of residence based on the child’s European Union citizenship.

The Secretary of State accepted that the claimant was the child’s sole carer but sought an adjournment to investigate the father’s United Kingdom links, the child’s schooling and possible alternative carers. The claimant opposed further delay. The central issues were whether the case should be adjourned and whether, on the evidence, the claimant was entitled to a derivative right of residence.

1. Adjournment. The adjournment application was refused. The Secretary of State had already caused unreasonable delay and gave no good reason why the proposed investigations had not been undertaken earlier. Further expenditure and use of strained public resources were relevant to proportionate case management. The evidence was sufficient for the court to reach a fair decision.
2. Legal test. Under the domestic implementation of Ruiz Zambrano v Office National de l'emploi [2011] ECR I-1177, the relevant question was whether the British citizen child would be unable to reside in the United Kingdom or another EEA state if the primary carer were required to leave. This was the core question identified in Hines v Lambeth London Borough Council [2014] EWCA Civ 660.
3. Application. The claimant was accepted to be the child’s sole carer. Removing her would leave the child either to accompany her to Ethiopia, thereby losing the practical enjoyment of his Union citizenship rights, or to accompany his father to Jamaica. The existing arrangement, with mother and child residing in the United Kingdom, was therefore the most effective and possibly the only realistic means of protecting those rights.
4. The proposed evidence did not materially alter that conclusion. The schooling evidence did not undermine the claimant’s continuing role. The father’s tax and property records did not show that he lived in the United Kingdom, wished to return, or would take charge of the child. The suggestion of another United Kingdom-based carer was speculative.
5. The claimant was entitled to derivative residence rights. The decision granting discretionary leave solely on Article 8 grounds was unlawful because it failed to recognise the wider derived right.