Alban Velaj v The Secretary of State for the Home Department

Under Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016, the decision-maker must conduct a practical, fact-specific inquiry into whether a British citizen would be unable to remain in the United Kingdom or another EEA state if the primary carer left indefinitely. The carer’s departure must be a realistic possibility. The provision does not require a counterfactual assumption that one or both primary carers will leave when the evidence shows that a carer will remain.

The same construction applies whether care is provided by one primary carer or shared by two. It also applies consistently across the derivative residence rights reflected in Regulation 16.

The appellant, a Kosovan national subject to a deportation order, shared primary responsibility for his British citizen son with the child’s British citizen mother. The First-tier Tribunal found that he had a derivative right to reside under Regulation 16(5) of the Immigration (European Economic Area) Regulations 2016, having assumed that both parents would leave the United Kingdom indefinitely.

The Upper Tribunal set that decision aside. It found that the mother would remain in the United Kingdom and held that the child would not be compelled to leave. After reconsidering the human rights claim, it dismissed the appellant’s appeal.

The Court of Appeal granted permission solely to determine whether Regulation 16(5)(c), read with Regulations 16(8) and 16(9), required a counterfactual assumption that both primary carers would leave, or a practical inquiry into whether they would in fact do so.

1. Appeal dismissed. Regulation 16(5)(c) required a practical assessment of what would happen to the British citizen if the primary carer, or both primary carers, in fact left the United Kingdom for an indefinite period. The postulated departure had to be realistic. The word “if” did not require a purely hypothetical or counterfactual assumption: paras [47]–[49].

2. The inquiry into whether the British citizen would be “unable” to remain required a nuanced, fact-specific analysis and a causal connection between the carer’s departure and the citizen’s inability to reside in the United Kingdom or another EEA state. This accorded with the practical compulsion principle in Ruiz Zambrano, Chavez-Vilchez and Patel. It also avoided conferring a new domestic derivative right where the applicant’s departure would have no practical effect on the citizen’s ability to remain: paras [49]–[50].

3. The legislative history supported that construction. The predecessor wording, “if P were required to leave”, presupposed that departure through legal or economic compulsion was a realistic possibility. The meaning did not change when responsibility was shared. Regulation 16(9) therefore did not require the decision-maker to assume that both carers would leave when one would remain: paras [51]–[52].

4. R (Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37 did not determine the meaning of Regulation 16(5)(c). Its ratio concerned the clear wording of the “exempt person” definition in Regulation 16(7), under which limited leave to remain did not create a threshold bar to acquiring a derivative right. A person with limited leave must nevertheless satisfy Regulation 16(5) on the actual facts: paras [59]–[70].

5. On the findings below, the appellant’s wife would remain in the United Kingdom and their son would remain with her. The son would not be compelled to leave the United Kingdom or the EEA. The appellant therefore had no derivative right under Regulation 16(5): paras [20], [34] and [71]. King and Whipple LJJ agreed with Andrews LJ: paras [72]–[73].

1. Court of Appeal (Civil Division): Dismissed the appeal and upheld the Upper Tribunal’s construction of Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016: [2022] EWCA Civ 767.

2. Upper Tribunal (Immigration and Asylum Chamber): In a decision promulgated on 3 June 2021, set aside the First-tier Tribunal’s decision for material error of law, remade the human rights appeal and dismissed it.

3. First-tier Tribunal: Allowed the appeal, finding both a derivative right of residence under Regulation 16(5) and very compelling circumstances outweighing the public interest in deportation.