Patel v The Secretary of State for the Home Department

A derivative right of residence under Article 20 TFEU arises only where refusal of residence to a third-country national would, in practice, compel the relevant Union citizen to leave the European Union. Chavez-Vilchez requires a careful, fact-sensitive enquiry into practical dependency, but does not lower or alter that threshold. The willingness of another Union-citizen parent to assume sole care is relevant but not conclusive. Family separation, economic hardship, reduced quality of life, or a difficult decision to follow a departing family member do not themselves establish compulsion. The same threshold applies to dependent adults, although the enquiry must address the particular medical, social and psychological evidence. A derivative residence claim is not a general route to residence for a non-EU family member.

These conjoined appeals concerned derivative residence claims under regulation 15A of the Immigration (European Economic Area) Regulations 2006.

In Shah and Bourouisa, non-EEA fathers were the primary carers of British children. The British mothers worked, but were able to care for the children and said that they would move abroad to preserve the family unit if the fathers had to leave. The Upper Tribunal upheld the First-tier Tribunal decisions allowing those claims.

In Patel, an Indian national cared for his seriously ill British parents. The First-tier Tribunal and Upper Tribunal accepted that he was the primary carer, but found that his father could remain in the United Kingdom with medical and social services support. The central issue was whether Chavez-Vilchez had altered the practical-compulsion test derived from Zambrano, particularly in cases involving dependent adults.

Disposition. The Court of Appeal allowed the Secretary of State’s appeals in Shah and Bourouisa and dismissed Patel’s appeal. Lord Justice Irwin gave the leading judgment; Lady Justice Thirlwall and Lord Justice Lindblom agreed.

1. Applicable test. Article 20 of the Treaty on the Functioning of the European Union, as reflected in regulation 15A of the Immigration (European Economic Area) Regulations 2006, requires practical compulsion. The question is whether refusal of residence to the third-country national would leave the British or Union citizen unable to reside in the United Kingdom or another EEA State and therefore compelled to leave the European Union. The third-country national bears the evidential burden, while the authorities must make the necessary factual enquiries.
2. Effect of Chavez-Vilchez. Chavez-Vilchez [2017] 3 WLR 1326 did not depart from or soften the principle in Ruiz Zambrano [2012] QB 265. It required careful attention to whether the citizen could remain in practice, rather than merely in legal theory. Earlier domestic authority, including Harrison [2012] EWCA Civ 1736 and Sanneh [2016] QB 445, retained its authority.
3. Children. The assessment must consider the primary carer, the relationship of dependency, the ability and willingness of the other Union-citizen parent to assume sole care, the child’s age and development, emotional ties, and the risks of separation. In Shah and Bourouisa, the mothers could care for the children. Their intention to follow the fathers was a choice made to preserve family life, not compulsion. The tribunals had therefore started with the desirability of family unity and wrongly inferred the required compulsion.
4. Family life. Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention on Human Rights are relevant considerations, but they do not replace the Article 20 test. Loss of earnings, diminished material circumstances and reduced family life do not automatically mean that the child must leave the European Union.
5. Dependent adults. The same compulsion threshold applies to dependent adults. A nuanced assessment means a full enquiry into the evidence, not a weaker legal test. State medical or social care, even if less personal or of lower quality, may mean that the British citizen can remain. In Patel, the parents’ devotion and difficult choice to follow their son did not amount to compulsion, and any overstatement in the factual assessment was immaterial.
6. The court observed that adult-dependent cases may exist in a narrow class, including cases involving severe autism, rare medical dependency or a documented psychological condition. Those examples were illustrative and not exhaustive.

• Court of Appeal (Civil Division): In [2017] EWCA Civ 2028, the Secretary of State’s appeals in Shah and Bourouisa were allowed, while Patel’s appeal was dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): The appeals in Shah and Bourouisa were dismissed and the First-tier Tribunal decisions were upheld. Patel’s appeal was dismissed by Judge Hanson on 23 February 2016.
• First-tier Tribunal: The appeals in Shah and Bourouisa were allowed. Patel’s appeal was dismissed on the basis that his father could remain in the United Kingdom with public medical and social care.