The reasons for the decisionsLagosbos wrote: ↑Mon Apr 26, 2021 12:52 pmDecision and reasons
7. The burden of proof is on the Appellant and the standard of proof is the balance of probabilities.
8. I have considered all of the evidence on file. I have also considered the submissions filed on behalf of the Appellant.
9. I have considered the written submissions made by both parties. The Secretary of State contends that the Aappellant can make an application for leave to remain under Appendix FM. This assertion goes to the issue of compulsion set out in regulation 16 (5) (c) in that the Secretary of State submits that the British citizen child is not compelled to leave the UK as the Aappellant has the option of making an alternative application for leave to remain under the Immigration Rules. It appears not to be in dispute that that Aappellant has never made an application for leave to remain under Appendix FM of the Rules.
10. Although the Respondent relies on the decision of the Court of Appeal in Patel, that decision was appealed to the Supreme Court and it is that decision which I must follow. In Patel the Supreme Court highlighted at paragraph 3 that the relevant wording of the domestic legislation is “unable to reside” (although the Court was considering regulation 15A of the 2006 Regulations the relevant wording is identical to that in reg 16(5)(c) of the 2016 Regulations).
Lady Arden considered the Zambrano jurisprudence and summarized it as follows;
“What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the TCN, with whom the Union citizen has a relationship of dependency, is removed. As the CJEU held in O v 4 Maahanmuuttovirasto (Joined Cases C-356/11 and C-357/11) [2013] Fam 203, it is the role of the national court to determine whether the removal of the TCN carer would actually cause the Union citizen to leave the Union. In this case, the FTT found against Mr Patel and concluded that his father would not accompany him to India. That means that, unless Chavez-Vilchez adopts a different approach to compulsion, Mr Patel’s appeal must fail. There is no question of his being able to establish any interference with his Convention right to respect for his private and family life as he has failed already in that regard.”
12. She went on to say at paragraphs 25-28:
“25. The final sentence of para 71 of the CJEU’s judgment in Chavez-Vilchez identifies the matters which the national court must take into account when deciding whether the requirement for compulsion is fulfilled. Chavez-Vilchez has to be read in the light of the particular facts before the CJEU, which were of separated parents where the Union citizen parent was not the primary carer and where the national court might well conclude that, having regard to the child’s best interests and the extent of their ties to their mother, the relevant relationship of dependency on the mother was made out. There is no direct analogy with a case, such as the Shah appeal, where the family is living together. In that situation, where the TCN is the primary carer and the parent with whom the child has the relevant relationship of dependency and the Union parent will stay with them so as to keep the family together, it will be in the child’s best interests to remain with both parents. Because Mr Shah was the primary carer, the need for a relationship of dependency with the TCN was fulfilled. Moreover, the quality of that relationship is under the jurisprudence of the CJEU a relevant factor in determining whether the child is compelled to leave the jurisdiction (see Chavez-Vilchez, para 71; KA, para 70).
26. It is argued that the reference to the need to consider the child’s best interests points to a shift in the law, and that the CJEU refined or diminished the requirement that there has to be compulsion to leave the Union. It is said that that diminution would enable consideration to be given to desirability of the family remaining together and to respect for family life, even in the case of adults. In that way, in judging when a person was compelled to leave the Union, regard would be had to a person’s family life and what he would have to do to maintain that family life.
27. I do not consider that this deduction can be made. In Chavez-Vilchez, the CJEU were concerned with the case of a child and it is clear from KA that the case of a child is quite separate from that of an adult and that in the case of an adult it will only be in “exceptional circumstances” that a TCN will have a derivative right of residence by reference to a relationship of dependency with an adult Union citizen. An adult Union citizen does not have a right to have his family life taken into account if this would diminish the requirement to show compulsion to leave. It must be recalled that in KA the CJEU effectively reaffirmed the need to show compulsion even after making it clear that the decision in Chavez-Vilchez was good law. Accordingly, Chavez-Vilchez does not relax the level of compulsion required in the case of adults, and thus provides no assistance to Mr Patel, whose appeal must therefore fail.
28. Nor does Chavez-Vilchez in fact have any impact on the Shah appeal. The outcome of that appeal depends on the findings of fact by the FTT and on whether the Court of Appeal correctly identified the relevant findings for the purposes of the test of compulsion. The FTT found as a fact that Mr Shah was the primary carer of his infant son and that he, rather than the mother, had by far the greater role in his son’s life (para 15). Accordingly, the child had the relevant relationship of dependency with Mr Shah. The FTT was entitled to make this finding on the facts, because the mother’s evidence that Mr Shah was the primary carer of her child and that she could not assume full responsibility for him because she worked full time was not challenged. The mother’s evidence that if Mr Shah was not allowed to stay in this country they would move as a family was also unchallenged. The FTT went on to reach what it called “an inescapable conclusion” that the son would have to leave with his parents and that accordingly the requirement for compulsion was met.”
Lady Arden looked at the question to be considered at paragraph 30 where she said:
“30. … The overarching question is whether the son would be compelled to leave by reason of his relationship of dependency with his father. In answering that question, the court is required to take account, “in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium” (Chavez-Vilchez, para 71). The test of compulsion is thus a practical test to be applied to the actual facts and not to a theoretical set of facts. As explained in para 28 of this judgment, on the FTT’s findings, the son would be compelled to leave with his father, who was his primary carer. That was sufficient compulsion for the purposes of the Zambrano test. There is an obvious difference between this situation of compulsion on the child and impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card. It follows that the Court of Appeal was wrong in this case to bring the question of the mother’s choice into the assessment of compulsion.”
13. In this case the Respondent does not dispute that the Appellant is the primary carer for a British citizen child. The Respondent does not dispute in the RFRL that the Appellant’s child would be compelled to leave the UK with him if he is not granted residence.
14. There is no reference in the Patel judgement to the necessity of exhausting domestic applications before acquiring a derivative right of residence. Regulation 16 makes no reference to a further requirement that rights of residence under domestic law or under the European Convention of Human Rights should be exhausted before a derivative right of residence can be acquired.
15. Although the Respondent asserts in the RFRL that the Appellant should make an application under Appendix FM, no guarantee is given that any such application under the rules will be granted.
16. I further take account of the judgement of Elias LJ in Harrison (Jamaica) v Secretary of State for the Home Department [2013] 2 CMLR 23 as approved in R (HC) v Secretary of State for Work and Pensions (AIRE Centre intervening) [2017] UKSC 73, [2017] 3 WLR 1486 that where the non-EU national is refused the right of residence because the EU citizen would not in practice be compelled to leave the country “Article 8 Convention rights may then come into the picture to protect family life as the court recognised in Dereci … but that is an entirely distinct area of protection…” [63]. He made no link between exhaustion of Article 8 rights and an assertion of the EU right of residence. I further note the judgement of Lord Reed in R (Agyarko) v Home Secretary [2017] UKSC 11, [2017] 1 WLR 823 where the said at para 65, in considering the decision of the Grand Chamber in Derici; “As the court made clear, that finding was distinct from the consideration of the case under article 8 of the ECHR or, if applicable, the corresponding provision (article 7) of the Charter of Fundamental Rights.” Further, at paragraph 30 of Patel, Lady Arden distinguished between the issue of compulsion and “impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card”.
17. In my view these decisions make clear that the consideration of the right of derivative residence is distinct from consideration under Article 8. Thus, the Respondent’s view that an application under Article 8 must precede consideration of a derivative right of residence is inconsistent with the view of the CJEU and domestic courts. I agree with the submission made on the Appellant’s behalf in the skeleton argument that the 2016 Regulations and case law must be followed rather than the Home Office policy guidance, where it is inconsistent with the Regulations.
18. In the light of the undisputed facts of this case that the Appellant is the primary carer of a British citizen child, and that child would be unable to reside in the UK or another EEA state if the Appellant were required to leave for an indefinite period, I conclude that the Appellant has established that he has a derivative right of residence in the UK under Regulation 16 and is entitled to a derivative right of residence card in accordance with Regulation 20 of the 2016 Regulations.
NOTICE OF DECISION
I allow the appeal under the Immigration (EEA) Regulations 2016
Anonymity has not been directed
4. The respondent’s reasons for refusing the application are brief and I therefore set them out in full:
To qualify for settled or pre-settled status as a ‘person with a Zambrano right to reside’, you must have a right to reside in the UK because you meet the relevant requirements in the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’). As you state that you are the primary carer of a British citizen, it is regulation 16(5) that is relevant in your circumstances. However, we are not satisfied that you meet the requirements of regulation 16(5) because:
You have not demonstrated that xxxxxx xxxxx xxxxxx would be unable to remain in the UK if you left the UK for an indefinite period. You can only be considered a ‘person with a Zambrano right to reside’ where xxxxx xxxxxx xxxxx would be unable to reside in the UK or the European Economic Area (EEA) if you were required to leave the UK for an indefinite period.
In order to demonstrate that xxxxx xxxxx xxxxx would be unable to reside in the UK or EEA if you left the UK for an indefinite period, you must be able to show that you would be required to leave the UK as you have no other means to remain lawfully in the UK as her primary carer.
An EU Settlement Scheme application based on a Zambrano right to reside will be refused where there is a realistic prospect that an application for leave to remain under Appendix FM to the Immigration Rules, or otherwise relying on Article 8 (the right to respect for private and family life) of the European Convention on Human Rights (ECHR), would succeed. This is because if you are able to obtain leave to remain in the UK on one of these bases, you will not be required to leave the UK, which means xxxxxx xxxxx xxxxxx will not be compelled to leave the UK or the EEA.
You cannot show that you would be required to leave the UK, and therefore cannot be considered a person with a Zambrano right to reside, if you have never made an application under Appendix FM to the Immigration Rules or an Article 8 ECHR claim where there is a realistic prospect that such an application or claim would succeed.
You previously made an application under Appendix FM, and this was successful, from the information and evidence provided or otherwise available, it is considered that your circumstances have not changed since that decision was made. So a further Appendix FM or Article 8 application stands a realistic prospect that such an application or claim would succeed.
It is considered that the information available does not show that you meet the eligibility requirements for settled status set out in rule EU11 of Appendix EU to the Immigration Rules or those for pre-settled status which are set out in rule EU14 of that Appendix. Therefore, you have been refused settled status and pre-settled status under rule EU6.
The legal framework
5. One of the eligibility requirements for settlement status under section EU 11 of Appendix EU of the Immigration Rules, is that the applicant is a person “with a Zambrano right to reside” in the United Kingdom, as defined in Annex 1. This includes, “a person who has satisfied the Secretary of State … that … they were:
(a) resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations by satisfying: (i) the criterion in paragraph 1(a) of that regulation; and
(ii) the criteria in:
(aa) paragraph (5) of regulation 16 of the EEA Regulations …; and
(b) is without leave to enter or remain in the UK, unless this was granted under this Appendix.”
[Emphasis added]
6. Before turning to the provisions of the Immigration (European Economic Area) Regulations 2016 that are thus incorporated into Annex 1 of Appendix EU, it is perhaps worth noting at this stage that Mostyn J has held the respondent to have erred in law in her formulation of the italicised words at paragraph (b) (see R (on the application of Olorunfunmilayo Olluwaseun Akinsanya) v The Secretary of State for the Home Department [2021] EWCH 1553 (Admin))
7. The relevant criteria for acquiring a derivative right of residence under Regulation 16 the 2016 Regulations, are as follows:
(1) A person has a derivative right to reside during any period in which the person—
(a) is not an exempt person;
……………
(5) The criteria in this paragraph are that—
(a) the person is the primary carer of a British citizen (“BC”);
(b) BC is residing in the United Kingdom; and
(c) BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.
…………
(7) In this regulation –
…………
(c) an “exempt person” is a person—
(i) who has a right to reside under another provision of these Regulations;
(ii) who has the right of abode under section 2 of the 1971 Act;
(iii) to whom section 8 of the 1971 Act, or an order made under subsection (2) of that section applies; or
(iv) who has indefinite leave to enter or remain in the United Kingdom.
The evidence
8. The appellant attached various documents to his Notice of Appeal, including a helpful ‘Skeleton Argument’. Although I shall make limited reference to these documents in the course of explaining the reasons for my decision, I wish to emphasise that I considered them all in the round in arriving at my conclusions.
Analysis
9. In drawing attention to paragraph 5 of Regulation 16 of the 2016 Regulations as the basis for refusing the application, it seems to me that the decisionmaker has confused two quite distinct questions, namely -
(1) Whether the appellant would be compelled to leave the United Kingdom in the absence of a Zambrano right of residence; and, if so,
(2) Whether xxxxxxxx would be compelled to leave with him.
Paragraph 5 deals with the second question. It moreover presupposes that the answer to the first question has already been answered in the affirmative. The provision that deals with the first question (the only one that the respondent appears to have raised as a basis for refusing the application) is in fact to be found in paragraph 1(a). This in turn depends upon the definition of an “exempt person” under paragraph 7. It will have been noted from that paragraph that, whilst those with indefinite leave to remain are exempted from a right of residence under ‘the Zambrano principle’, this does not extend to those, such as the appellant, who had extant limited leave to remain outside the Regulations. Still less does it apply to those who may have a, “reasonable prospect”, of acquiring such leave at the date of decision.
10. The only possible justification for refusing the application on the basis of the first question, therefore, was under sub-paragraph (b) of the definition of a person who
otherwise qualifies for a Zambrano right of residence under Annex 1 to Appendix EU. It will be recalled that this refers to a person who does not already have leave to enter or remain in the United Kingdom outside the scheme (see paragraph 5, above). However, as previously noted, that provision has been declared to be in conflict with EU law by Mostyn J, in R (on the application of Olorunfunmilayo Olluwaseun Akinsanya) v The Secretary of State for the Home Department (see paragraph 6, above). Although this decision is not strictly binding upon me, it is nevertheless highly persuasive. I therefore respectfully adopt its reasoning in arriving at the same conclusion. However, unlike Mostyn J, I am not constrained by the rules of legislative interpretation in seeking to avoid its consequences. This is because it is open to me to find that the decision to refuse the application on a basis that is conflict with EU law necessarily also contravenes the appellant’s rights under the EU Withdrawal Agreement. I so find.
11. I am of course conscious that the basis of the decision was not that the appellant already had the benefit extant leave to remain outside the EUSS at that time (although this was in fact the case: see paragraph 3, above) but, rather, that he had reasonable prospects of acquiring such leave. As I have already noted, there is nothing in either the 2016 Regulations or Annex 1 to Appendix EU that warrants refusing the application on this basis. However, for the sake of completeness, I would note that the refusal seems to have been based upon the Secretary of State’s view of the jurisprudence as set out in the relevant Home Office Guidance. This view is in turn based upon an obiter dictum in the judgement of Irwin LJ in Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028. However, insofar as it may be necessary to do so, I again respectfully adopt the reasoning of Mostyn J in R (on the application of Olorunfunmilayo Olluwaseun Akinsanya) v The Secretary of State for the Home Department in holding that the judgement in Patel does not support the Secretary of State’s view that it is necessary for an applicant to demonstrate that they do not already have leave to remain outside the scheme and/or that they are without reasonable prospects of acquiring it.
12. I also note that the respondent has not raised any of the other eligibility requirements under section EU 11 of Appendix EU as a reason for refusing the application. I have therefore assumed these to be met without needing to make any specific factual findings in that regard.
Notice of Decision
13. The appeal is allowed on the ground that (a) the decision is not in accordance with Immigration Rules, and (b) is contrary to the appellant’s rights under the EU Withdrawal Agreement.
