The Secretary of State for the Home Department v George Oluwasheun Ayinde & Anor

A derivative right of residence for the carer of a British citizen under Immigration (European Economic Area) Regulations 2006, reg 15A, arises only where the carer proves as a fact that removal will force the British citizen to leave the European Union. Article 20 citizenship rights protect residence within Union territory. They do not guarantee a preferred standard of living, care arrangement, or family life.

The inquiry does not ask whether it would be reasonable for the carer or citizen to leave the United Kingdom. Alternative care, including social services, NHS care and residential care, may be relevant because it bears on whether the citizen will in fact leave. The Tribunal must scrutinise assertions of compelled departure, including by comparing available support in the United Kingdom with conditions abroad.

The Secretary of State appealed two First-tier Tribunal decisions which had allowed applications for derivative residence cards under reg 15A of the Immigration (European Economic Area) Regulations 2006.

Mr Ayinde, a Nigerian national, cared for his British-citizen mother, who had serious physical and mental health needs. Mrs Stevens, a Thai national, cared for her elderly British-citizen husband. The First-tier Tribunal found that each British citizen would have to enter residential care if the carer left, and treated departure from the United Kingdom as unreasonable.

The central issue was whether the Ruiz Zambrano principle entitled a non-national carer to reside where removal would reduce a British citizen's quality of life or preferred care, but would not in fact compel that citizen to leave the Union.

1. The Secretary of State's appeals were allowed. The First-tier Tribunal decisions were set aside and remade by dismissing both applications for derivative residence cards.

2. Under Article 20 TFEU and reg 15A(4A)(iii) of the Immigration (European Economic Area) Regulations 2006, the relevant question is whether removal of the primary carer means that the British citizen will in fact be forced to leave the United Kingdom and the Union. The right protected is the Union citizen's right to reside in Union territory. It is not a right to a particular quality of life, standard of living, home, or carer of choice.

3. The Tribunal followed Ruiz Zambrano, [2011] EUECJ C-34/09, and the subsequent authorities. They confine the exceptional derivative right to cases in which refusal of residence to the third-country national would deprive the Union citizen of the genuine enjoyment of the substance of Union citizenship because the citizen would have to leave Union territory. Article 8 ECHR may address family-life consequences, but it is a distinct basis of protection.

4. A fact-finder must not assume that a British citizen will accompany the carer abroad. Nor is there a free-standing test of whether such departure would be reasonable. Services available from social services, the NHS, care agencies and residential homes must be considered, since they may demonstrate that the British citizen can remain in the United Kingdom.

5. On the evidence, Mr Ayinde's mother wished and needed to remain in the United Kingdom, where her medical treatment and support were available. Mr Stevens was also unlikely to leave the United Kingdom, particularly at his age and given the care available there. Neither was unable to reside in the United Kingdom if the respective carer departed.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State's appeals, set aside the First-tier Tribunal determinations for errors of law, and substituted decisions dismissing both appeals.
• First-tier Tribunal: had allowed the respondents' appeals against refusals of derivative residence cards under reg 15A of the Immigration (European Economic Area) Regulations 2006.