Patel v Secretary of State for the Home Department

A third-country national has a derivative right of residence under EU citizenship law only where a relationship of dependency means that refusal of residence would in practice compel the Union citizen to leave the European Union.

For an adult Union citizen, the necessary dependency can arise only in exceptional circumstances. Family life, economic considerations and the desirability of remaining together do not dilute the requirement of actual compulsion.

For a child, the decision-maker must assess the child’s best interests and all the specific circumstances. The ability of the Union citizen parent to care for the child is relevant but not decisive. The assessment concerns what would actually happen, rather than a theoretical alternative arrangement.

These conjoined appeals concerned the derivative residence right recognised where removing a third-country national carer would compel a dependent Union citizen to leave the European Union.

Mr Patel, an Indian national, cared for his ill British parents. The First-tier Tribunal found that his father would remain in the United Kingdom and receive alternative care if Mr Patel left. The Upper Tribunal and Court of Appeal dismissed his appeals.

Mr Shah, a Pakistani national, was the primary carer of his infant British son. The First-tier Tribunal found that Mr Shah’s British wife would accompany him abroad and that their son would therefore have to leave too. The Upper Tribunal upheld that decision, but the Court of Appeal, [2017] EWCA Civ 2028, held that the mother could care for the child in the United Kingdom.

The central issue was the nature and intensity of the compulsion required by the Zambrano principle, including the different approaches applicable to dependent adults and children.

1. The Patel appeal was dismissed and the Shah appeal was allowed unanimously. Lady Arden gave the judgment, with which Lady Hale, Lord Carnwath, Lord Briggs and Lord Sales agreed.

2. The Zambrano derivative right protects the effective enjoyment of Union citizenship. It arises only where a relationship of dependency means that refusing residence to a third-country national would compel the Union citizen in practice to leave the European Union. It is not an autonomous right belonging to the third-country national. The words “unable to reside” in regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006 had to be interpreted, so far as possible, consistently with that principle.

3. Adult and child Union citizens must be treated differently. An adult will generally be capable of living independently. A qualifying relationship of dependency between adults is therefore conceivable only in exceptional circumstances where no form of separation is possible. The rights to family life and the rights of elderly people under the Charter cannot reduce the requirement of actual compulsion or enlarge the scope of EU law.

4. Chavez-Vilchez did not relax the degree of compulsion required for adults. The First-tier Tribunal had found that Mr Patel’s father would remain in the United Kingdom and receive social-services and medical care, although his quality of life might be lower. Since he would not leave the Union, Mr Patel acquired no derivative residence right.

5. Where the Union citizen is a child, the decision-maker must identify the primary carer and determine whether the child is dependent on the third-country national. The child’s best interests and all specific circumstances must be considered, including age, physical and emotional development, ties to each parent and the risks created by separation. The Union citizen parent’s ability and willingness to assume sole care is relevant but is not decisive.

6. The compulsion inquiry is practical and must be applied to the facts found, not to a theoretical alternative. The First-tier Tribunal was entitled to find that Mr Shah was his infant son’s primary carer, that the child was dependent on him, and that the family would leave together if Mr Shah were removed. The Court of Appeal erred by treating the mother’s theoretical ability to remain and care for the child as determinative and by focusing on her choice to accompany her husband. The child would actually be compelled to leave with his primary carer, which satisfied the Zambrano test.

1. United Kingdom Supreme Court: The Patel appeal was dismissed and the Shah appeal was allowed unanimously: [2019] UKSC 59.

2. Court of Appeal: In [2017] EWCA Civ 2028, reported at [2018] 1 WLR 5245, the court dismissed Mr Patel’s appeal and reversed the decision recognising Mr Shah’s derivative residence right.

3. Upper Tribunal: Mr Patel’s challenge was unsuccessful. In Mr Shah’s case, the tribunal upheld the finding that his son would be compelled to leave Union territory.

4. First-tier Tribunal: Mr Patel’s claim failed because his father would remain in the United Kingdom with alternative care. Mr Shah succeeded because he was his infant son’s primary carer and the family would leave together if he were removed.