Alban Velaj v The Secretary of State for the Home Department

Implementing legislation intended to give effect to European law should generally receive a purposive construction. Where domestic legislation goes beyond the minimum required by a Directive or Court of Justice ruling, there is no automatic requirement to adopt a conforming interpretation. The court must determine whether the domestic legislature intended to extend the rights conferred.

Under regulation 16(5) of the Immigration (European Economic Area) Regulations 2016, whether a British citizen child would be unable to reside in the United Kingdom is a practical, fact-sensitive question. It requires detailed consideration of both primary carers and a causal link between their departure and the child’s inability to remain. A merely theoretical assumption that both carers leave is insufficient.

The Secretary of State appealed against a decision of the First-tier Tribunal allowing the appellant’s appeal against a deportation decision. The appellant, a Kosovan national, had been convicted of importing cocaine and relied on a derivative right of residence under regulation 16 of the Immigration (European Economic Area) Regulations 2016, as well as Article 8 of the European Convention on Human Rights.

The First-tier Tribunal found that his British citizen son would be unable to remain if both parents left the United Kingdom and allowed the appeal. The Upper Tribunal set that decision aside and remade the appeal. The central issues were the proper interpretation of regulation 16(5), the effect of the EU ground of appeal, and whether deportation was disproportionate under section 117C of the Nationality, Immigration and Asylum Act 2002.

1. The First-tier Tribunal had erred in law. Its decision was set aside and the appeal was remade.

2. The relevant EU ground of appeal permitted an appeal only where the decision breached rights under the EU Treaties. It did not permit an appeal solely because a right granted by the EEA Regulations was wider than the rights conferred by the Treaties.

3. The EEA Regulations were implementing legislation made against the background of EU law. They therefore required a purposive construction. However, the court had to determine whether the domestic legislature intended the Regulations to go beyond the minimum requirements of the Directive and the Court of Justice jurisprudence. The explanatory memorandum indicated an intention to give effect to that jurisprudence.

4. Regulation 16(5) could not be construed on the appellant’s proposed theoretical basis. The question whether the child would be unable to reside in the United Kingdom required a practical and nuanced assessment of the actual circumstances. It required detailed consideration of both carers and a causal link between the departure of both primary carers and the child’s inability to remain. The First-tier Tribunal had not undertaken that analysis.

5. The grounds concerning the interaction between a derivative right and Article 8 were consequently academic. The Tribunal nevertheless observed that a derivative right crystallises when dependency arises, and that consideration of a Zambrano right precedes consideration of Article 8.

6. On remaking the appeal, the appellant could not satisfy either exception in section 117C of the Nationality, Immigration and Asylum Act 2002. The assessment of very compelling circumstances under section 117C(6) required a wide-ranging, individualised evaluation, including the seriousness of the offence and the public interest in deterrence. The effects on the appellant’s wife, son and mother were harsh and distressing, but did not outweigh the very strong public interest in deportation following a twelve-year sentence for importing a significant quantity of cocaine.

7. The appeal was dismissed on all grounds.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision, promulgated on 18 July 2019, was found to involve an error of law, set aside, and remade. The appeal was dismissed on all grounds.
• First-tier Tribunal: Allowed the appellant’s appeal against the Secretary of State’s deportation decision, finding a derivative right of residence and very compelling circumstances under section 117C(6) of the Nationality, Immigration and Asylum Act 2002.