MS (Malaysia) v Secretary of State for the Home Department

A derivative right of residence for the adult primary carer of a British citizen arises only exceptionally. Under Immigration (European Economic Area) Regulations 2006, regulation 15A(4A), the decisive question is whether the British citizen would, in practical reality, have no effective choice but to leave the European Union if the carer left.

The enquiry is objective, global and intensely fact-sensitive. It requires assessment of the character and quality of the physical and emotional dependency, and of the actual adequacy of alternative care. State-funded care is relevant, but it is not invariably decisive. A tribunal's evaluative conclusion on practical compulsion should not be displaced on appeal merely because an appellate court might have assessed the facts differently.

MS, a Malaysian national, was the lifelong primary carer of her elderly mother, DK, a British and EU citizen with extensive physical, medical and personal-care needs. MS applied for a derivative residence card under regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006.

The First-tier Tribunal allowed her appeal. The Upper Tribunal initially set that decision aside for inadequate reasoning, but Upper Tribunal Judge Kopieczek remade the decision and dismissed the Secretary of State's appeal in case IA/38332/2014. He found that DK would inevitably leave the United Kingdom with MS, notwithstanding available state support.

The Secretary of State appealed, contending that the Upper Tribunal had substituted subjective preference for the objective test of practical compulsion and had failed to give proper weight to state medical and social care. The central issue was whether DK would be unable in fact to remain in the United Kingdom or another EEA state if MS were required to leave.

Appeal dismissed. Floyd LJ, with whom Holroyde and Underhill LJJ agreed, held that the Upper Tribunal had applied the correct legal test and had reached an evaluative conclusion open to it on the evidence.

1. The right protected by article 20 TFEU and regulation 15A(4A) is the substantive ability of the EU citizen to reside in Union territory. It does not guarantee a particular quality or standard of life. For an adult EU citizen, a dependency capable of conferring a derivative right on a third-country national will arise only exceptionally. The adult must have no practical choice but to leave Union territory if the carer is required to leave.

2. The enquiry is objective, global and fact-sensitive. A statement by the EU citizen that they would leave is relevant evidence, but it is not conclusive. The tribunal must assess the whole relationship of dependency. It need not isolate the precise contribution of each physical, emotional or psychological element where the evidence establishes an exceptional dependency overall.

3. The Upper Tribunal had done so. DK required help throughout daily life, including intimate care, had specialised religious needs, and could not obtain adequate alternative care from family or residential provision. Her attachment to MS was one aspect of an exceptional physical and emotional dependency. The judge was entitled to find that remaining apart from MS was not an effective choice.

4. The availability of state medical and social care was a relevant consideration, but not a trump card. As with the dependency enquiry in Case C-133/15, the existence of an alternative carer does not remove the need to assess the actual dependency relied on. The preserved finding that state provision was inadequate was properly considered.

5. Applying the appellate restraint explained in [2007] UKHL 49 and [1996] UKHL 18, the court would not substitute its own assessment for that of the specialist tribunal where there was no legal misdirection.

• Court of Appeal (Civil Division): the Secretary of State's appeal was dismissed: [2019] EWCA Civ 580.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Kopieczek remade the decision and dismissed the Secretary of State's appeal, holding that MS satisfied regulation 15A(4A) and was entitled to a derivative residence card: IA/38332/2014.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Pinkerton had set aside the First-tier Tribunal's first determination because it gave insufficient reasons for concluding that regulation 15A(4A) was satisfied.

• First-tier Tribunal: allowed MS's appeal on 24 August 2015, finding that DK would be unable to reside in the United Kingdom or another EU member state if MS had to leave.