The Secretary of State for the Home Department v RM (Pakistan)

For an adult British citizen relying on a derivative right of residence under the Immigration (European Economic Area) Regulations 2016, regulation 16(5)(c) requires objective practical compulsion to leave the United Kingdom or the EU if the third-country carer leaves indefinitely. An understandable preference to remain with that carer, even with a firm intention to leave, is insufficient unless practical alternatives leave no practical choice. Subjective intention is relevant but not decisive. Alternative state or residential care is relevant, but not a trump card, and must be assessed realistically for availability, appropriateness and adequacy. Private or family life cannot be used to lower the compulsion threshold. The appeal was allowed because the tribunal substituted subjective choice for objective compulsion.

RM, a Pakistani national, was the primary carer of his adult British citizen brother, A. The Secretary of State refused RM a residence card under regulation 16(5)(c), concluding that care alternatives meant A would not be compelled to leave the United Kingdom. The First-tier Tribunal dismissed RM’s appeal. The Upper Tribunal allowed it, remade the decision and held that A would leave the United Kingdom, and therefore the EU, if RM were required to leave. The Secretary of State appealed on the legal test, alternative care, private life and adequacy of reasoning. The central issue was whether the Upper Tribunal had correctly decided that A would be unable to reside in the United Kingdom or another EEA state if RM left indefinitely.

1. Appeal allowed. The Upper Tribunal’s decision was set aside and the case was remitted to the Upper Tribunal for rehearing before a different judge.
2. Applicable test. Under regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016, an adult British citizen must, in practice, be compelled to leave if the third-country family member leaves indefinitely. The test is objective and demanding. It requires a global assessment of all relevant circumstances, including whether any practical alternative makes separation possible. A firm subjective intention to leave is relevant but cannot be decisive. The court also applied due deference to the specialist immigration tribunal, as explained in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49.
3. Material error. Although the Upper Tribunal correctly stated the legal test, it treated A’s view that he could not remain without RM as conclusive, rather than asking whether he was objectively compelled to leave. Its comparison between life in Pakistan and life in the United Kingdom addressed what A would reasonably choose, not whether he had no practical choice. Reliance on the child-focused reasoning in Patel v Secretary of State for the Home Department [2019] UKSC 59 was misplaced.
4. Private life. The Upper Tribunal also wrongly relied on the effect of RM’s departure on A’s public and political activities. Under Patel, an adult British citizen’s private or family life cannot be taken into account where doing so diminishes the requirement to establish compulsion.
5. Alternative care. State-funded care is relevant but not a trump card. Following MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580, alternative care must be assessed realistically for availability, appropriateness and adequacy. The Upper Tribunal’s findings on the evidence were open to it because the Secretary of State produced no contrary evidence. That conclusion did not cure the separate error in applying the compulsion test.

• Court of Appeal (Civil Division) — [2021] EWCA Civ 1754: appeal allowed; the Upper Tribunal’s decision was set aside and the case remitted to the Upper Tribunal before a different judge.
• Upper Tribunal (Immigration and Asylum Chamber) — The appeal from the First-tier Tribunal was allowed and the decision remade. The tribunal held that A would leave the United Kingdom and therefore the EU if RM had to leave, establishing a derivative right to reside.
• First-tier Tribunal — RM’s appeal against the refusal of a residence card was dismissed. The tribunal found that practical care alternatives existed and that the evidence did not establish a need for constant night-time care.
• Secretary of State’s decision — RM’s application for a residence card was refused on 1 April 2019.