The recent decision in Ayinde and Thinjom raises  issue  as  regards  whether the case of Zambrano   can ever  in practice be relied upon  successfully  by  foreign national  primary carers of dependant  adult British citizens residing in the UK.

The Upper Tribunal’s decision further   raises as  an issue of serious  consideration,  whether, rather than seek to pursue a derivate right of residence   by reliance upon the EEA Regulations,  making an Article 8 or Appendix FM  claim in   an appropriate  case for  foreign national  carers of  dependant  British adults  might  achieve the desired outcome.

 Ayinde and Thinjom (Carers – Reg.15A – Zambrano) [2015] UKUT 560 (IAC):

• First Appellant: Adult Son Caring for  Adult British  Citizen Mother:

Mr Ayinde, a Nigerian citizen was aged 41years at the time of the hearing. He had  entered the UK in 2001 and made a claim for asylum which failed. He further made a claim for settlement  and this also did not succeed.   In 2011 he made two applications for leave to remain as a carer of a British citizen,  and  sought to  rely upon  the Zambrano principle. These applications were refused in November 2011 and March 2012 respectively. On  19 July 2012, he again  sought a derivative residence card under  Regulation  18A of the 2006 EEA regulations which was inserted into the Regulations  with effect from 16 July 2012. He claimed that he was a carer of his British  mother who  was born on 18 August 1948. The application was  refused on the basis that the evidence provided did not establish that his mother could not call upon the services of others for her daily needs, including those provided by the NHS. She had been admitted as a hospital in-patient on five occasions, the last being in 2008. The Secretary of State argued  that adequate assistance was provided for her care, including access to social services. She concluded, therefore, that the appellant had failed to demonstrate that his mother would be unable to reside in the United Kingdom if he were required to leave.  At the hearing in the First Tier Tribunal, the appellant put forward among other matters, that the  health facilities in Nigeria could not meet his mother’s  requirements.  Further in the UK, she had her house that she liked, was able to go to church every week, with his assistance and had friends. He  stated that he was able to provide a good level of care for her. In Nigeria,  the Appellant  would not be able to afford the medication that she needed. She had her tumour monitored in this country which needed to be  checked  for re-growth. She also had a problem with her thyroid which was regularly monitored. In addition, the appellant gave evidence that his mother suffered from paranoid schizophrenia, type II diabetes, was partially sighted and was suffering the residual effects from a brain tumour which was excised in February 2009. She was on a variety of medications. He had been living with her since November 2008, performing the routine tasks of assisting to bathe her, preparing food and doing the shopping. He was also  responsible for ensuring that the bills were paid.

• Second Appellant: Wife caring for British Husband:

Ms Thinjom originated from Thailand and was 48years old at the time of  the  hearing and her  British husband was 85years old.  The appellant  had entered the United Kingdom in June 2012 in order to visit her relatives here. On 18 July  2012 she applied for a derivative residence card as the primary carer of  Mr Stevens, a British  citizen.  She married her  British spouse couple  on 13 August 2012.  The evidence was that  the British citizen’s health had deteriorated to the extent that he had become increasingly reliant upon his wife’s care. They live in sheltered accommodation in Camden. He was in receipt of pension and benefits. Although he had two daughters, he did  not see them. He also had  an older sister who was  seriously ill. Mr Stevens had had three ‘mini strokes’, suffered from diabetes and hypertension and  was  in remission from cancer of the bladder. Prior to his marriage, Mr Stevens had been paying for a carer who visited him twice a week for two hours on each occasion. Since then, he stated that his health had deteriorated to the extent that he could not  now walk very far and his wife helped  him with bathing, shaving cooking, shopping washing and cleaning. His GP confirmed the level of care provided by his wife. Mr Stevens explained that he was  wholly dependent upon his wife for every aspect of his physical care and that, were she to leave, he would have to be taken into care in a residential home which he would not wish.

• The Arguments:

In each case, the First-tier Tribunal Judge allowed the Appellants’ appeals  against the decision of the Secretary for State  to refuse to issue them with a derivative residence card.  The First Tier Tribunal Judge  sought to apply the principle developed by the Court of Justice of the European Union in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09 as incorporated into domestic United Kingdom law by the insertion of  Regulations 15A and 18A into the Immigration (European Economic Area) Regulations 2006. In reaching their decisions, both Judges concluded that it would not be reasonable to require the respective appellants to leave the United Kingdom.

It was argued, in summary, on behalf  of the Appellants that  their actions as carers rendered them able to benefit from the principle in Zambrano which, it was  submitted, enables non-nationals who are the primary carers of dependent British citizens the right to reside and to work on the basis that, without their support and their earnings it must be assumed that the British citizen would ultimately have to leave the EU with their carers.  There was a further submission that the Courts have recognised that the concept of European citizenship entails more than a bare right of residence and have acknowledged that a ‘ serious impairment’ of the EU citizen’s standard or quality of life, resulting from the carer having to leave the EU, could in practice compel the EU citizen to follow. Considerable reliance was also  placed upon Articles 1, 3, 7, 21, 25 and  34  the Charter of the Fundamental Rights of the European Union.  It was argued that the genuine enjoyment of the substance of their rights conferred by virtue of their status as citizens of the Union included the right to maintain their dignity.

The Secretary of State strongly resisted the arguments and also argued that the fundamental flaw in the appellants’ case  was  obvious from the case-law of the Court of Justice and domestic courts which make it clear that the Zambrano principle only applies when a Union citizen will, as a matter of fact, be forced to leave the Union.  The Secretary of state argued that  principle does not apply where that is not the case, even if the quality of life of the Union citizen would be substantially diminished as the result of the primary carer’s departure.  The Secretary of State classified the  appeals as a wish to secure a better quality of life for the British citizens concerned which is outside the right to reside in the United Kingdom. That right remains possible as a matter of substance. It was argued that the British citizens seek both the right to reside in the United Kingdom (which they currently enjoy and which is guaranteed them both as British citizens) and the right to reside with the lifestyle of their choice with carers of their choice and in a place of their choice (which is not guaranteed under European law).

• ECJ and Domestic Caselaw Considered:

In addition to considering the principles in the case of Zambrano, the Upper Tribunal also considered the following ECJ and domestic caselaw:

• Dereci & Ors (European citizenship) [2011] EUECJ C-256/11– paragraphs 66 to 68 considered;
• Yoshikazu Iida v Stadt Ulm [2012] EUECJ C-40/11– paragraphs 71, 72, 76 and 77 considered;
• & S v Maahanmuuttovirasto v L [2012] EUECJ C-356/11– paragraphs 47, 48, 49 and 56 considered;
• Damion Harrison (Jamaica) & AB (Morocco) v SSHD [2012] EWCA Civ 1736– paragraphs 57, 62, 63, 66 and 67 considered:
• Sanneh, R (on the application of) v the SS for Work and Pensions & Anor [2013] EWHC 793 (Admin)– paragraphs 95,96,99 and 100 considered.

• Upper Tribunal’s Decision:

The Upper Tribunal considered that the  Appellant’s submissions as  related to the scope of the rights protected by Union citizenship were  flawed. The Tribunal  observed that the  rights associated with citizenship of the EU are the rights created by the European Treaties, however that it was noticeable that the rights do not trespass upon the rights derived from being a citizen of the individual’s country of nationality. There is a demarcation between the rights created and preserved by the TFEU and those rights that are created or preserved under national law.

The Upper Tribunal could see no significant difference between the argument advanced to  before them  and that made by the Appellant’s counsel in Damion Harrison,  where it was roundly rejected by the Court of Appeal. The Tribunal considered that reliance on broad principles of human dignity as contained within the Charter of the Fundamental Rights of the European Union did  not assist the appellants. In order to permit the elderly to lead a life of dignity and independence, the country of which he or she is a national must provide adequate facilities for their care but that did not imply this requires the national authorities to permit a right of residence to the carer of choice of its elderly citizens.

As regards the appellants argument  that the genuine enjoyment of the substance of the rights of their British family members includes the right of those suffering the effects of increasing age, infirmity or illness should be protected against losing their home and losing the care provided by their family members, the Tribunal  considered that submission ran “dangerously” close to arguing that those who are unable to benefit from carers from within their family are at risk of suffering a violation of their rights by being cared for by local authority carers or social workers or by the NHS or by being placed in a care-home. This  was considered to be  misconceived. The Tribunal  stated that the support provided by local authorities, care agencies, residential homes and hospitals has at its core the preservation of the dignity of those under their care. Care workers would justifiably feel aggrieved at the suggestion that their care falls below a standard that preserves the dignity of their patients. The fact that examples can be found of care falling below acceptable standards was  not to the point.

As regards the First Appellant, the Upper Tribunal found that the First-tier Tribunal Judge did not find as a fact that  the British citizen mother would leave. The approach of both Judges was that it would not be reasonable for the British citizens to leave. It was considered that the First-tier Tribunal Judges’ solution in adopting a reasonableness test, diluted the relevant test, perhaps even distorted it. The First Tier  Judge  was found to have erred by failing to appreciate that an essential element of the Zambrano principle was that it had to be established that the British Citizen would leave the Union if her son left.  The Judge had also  applied a reasonableness test which was inapplicable when the question was whether  the British Citizen mother was unable to remain in the United Kingdom. Further the Judge  excluded from his consideration the provision that would be made by social services and the NHS when this was a vital part of the assessment.  The Upper Tribunal  found that it was simply impossible to claim that she was  unable to remain in the United Kingdom once her son leaves.

As regards the second Appellant, the Upper Tribunal considered that the First Tier Judge erred by failing to appreciate that an essential element of the Zambrano principle was that it had to be established that Mr Stevens would leave the Union whereas the evidence established that he would not. Further, the  Judge  had applied a reasonableness test which was inapplicable when the question was whether Mr Stevens was unable to remain in the United Kingdom. The Upper Tribunal found  in fact,  that  Mr Stevens was unable to leave the United Kingdom.

In each appeal, the Upper Tribunal decided that the claim that in each of the appeals that the Zambrano principle should be extended to permit their carers to remain in the United Kingdom must be rejected.

ARISING ISSUES

•  Zambrano Distinguished :

The Upper Tribunal considered that the two Appellants circumstances   were  very different from the situation in Zambrano.  It was noted that whilst a minor child can survive without his parents in an adoption, foster-care or a children’s home may provide a proper and adequate level of care,  such alternative care is only likely to be contemplated if there are serious reasons for breaking the relationship between a child and one or both of his parents. Serious wrong-doing on the part of both parents (or, more often, of one of the parents) may justify the separation. However, elderly adults could  more readily survive without a family member to act as their carer if there are adequate support mechanisms in existence to provide them with alternative care to an appropriate standard. It is beyond the range of proportionate responses that a minor should be required to go into some form of alternative care (be it adoption, foster-care or residential care) in order to enjoy his EU rights were both his parents required to leave. The same considerations however do not  normally apply in relation to the infirm or elderly.

The Upper Tribunals stated that in Ruiz Zambrano, it was not the difference between the standard of care that the Zambrano parents provided to the children at home and the standard of care provided by child care agencies that prompted the Court of Justice to reach its decision. A comparison of alternative care arrangements was not being considered. It was not, therefore, the quality of life or care that was in issue but what would happen to the Zambrano children, that is, whether they would remain or leave. For the Zambrano children, the answer was obvious: the children would go with their parents. It was impossible to contemplate an outcome in which they would not be driven to leave. That was considered to be  a far cry from the situation facing  the circumstances of the British adults neither of whom will leave the United Kingdom.

The Upper Tribunal also considered that the recognition that children are in need of specific forms of protection is acknowledged in the UN Convention on the Rights of the Child which recognises that children should grow up in a family environment. Further Article 9.1 of the Convention provides that the United Kingdom normally provides that a child should not be separated from his parents against their will, except in defined and limited circumstances. Similarly, the Immigration Rules and the IDIs reinforce the special place that children have in the deportation of a parent who falls within the definition of a foreign criminal. It is an exception to the public interest in favour of removal if it is established that removal is ‘unduly harsh’ to a qualifying child, see s. 117C (5) of the Nationality, Immigration and Asylum Act, 2002, as amended. No comparable system of regulation applies in relation to the needs of the elderly, certainly in the context of recognising the rights of family members to maintain family life together. The  Upper Tribunal considered that the distinction  was  intentional. It informs a consideration of the Zambrano principle when attempts are made to apply it to persons other than minor children.

• Comparisons of the conditions that a British citizen will meet on being forced to settle elsewhere:

It was considered that the Tribunal is entitled to look critically at a claim that a person will be forced to leave the EU because of a refusal by the national authorities to grant his carer leave to remain. The reason for such a critical look is because the claim advanced will be the very opposite: it will be a claim that the carer be permitted to remain and the British citizen will not be required to move.

Further, if the claim is based on the British citizen being forced to leave the Union, the likelihood of this occurring has to be assessed by reference to the benefits the Union citizen is receiving in the UK and will be entitled to receive were the appellant to leave. Hence, if the British citizen is in receipt of free healthcare, subsidised accommodation (or an allowance to assist in the payment of rent) and state benefits, pensions and fringe benefits in the form of concessions available to the elderly, there will be a significant evidential hurdle in attempting to make out a case that the British citizen will, as a matter of fact, leave the United Kingdom. In reality if these benefits are not available in the country to which he claims he will be forced to travel by reason of the refusal of a grant of a derivative residence card to his carer, the likelihood of his doing so is likely to be remote. Hence the Tribunal will also have to compare the conditions that a British citizen will meet on being forced to settle elsewhere when assessing whether he is being forced to leave the United Kingdom. The greater the disparity, the less likely it will be that the British citizen will in fact leave the United Kingdom. A bare assertion that the British citizen will be forced to leave the United Kingdom is unlikely to be sufficient; all the more so if this has been his only home for many years.

• No Violation of Human Dignity If Adult British citizen  Is In  Receipt of Professional Care Support in the UK:

The Upper Tribunal further stated that  whilst the two  appeals were put on the basis that the British citizen has a right to human dignity which is inviolable and must be respected and protected, some care must be taken before reaching such a conclusion. It is not enough that the British citizen would prefer that his carer is permitted leave to remain in the United Kingdom. There is nothing intrinsically lacking in human dignity in being offered the professional help of care workers or being placed into residential accommodation with a sliding-scale of support ranging from a home adapted to the individual’s needs, through to accommodation with a warden, through to a residential home; through to full nursing care. It would be plainly incorrect to say that it is a violation of an individual’s rights to human dignity to be placed into care or to receive help from professional healthcare workers.

• Principles Arsing Out of Ayinde and Thinjom:

(i)       The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano is limited to safeguarding a British citizen’s EU rights as defined in Article 20.

(ii)   The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union.

(iii)     The requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the carer to leave the United Kingdom. A comparison of the British citizen’s standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the United Kingdom.

(iv)   The Tribunal is required to examine critically a claim that a British citizen will leave the Union if the benefits he currently receives by remaining in the United Kingdom are unlikely to be matched in the country in which he claims he will be forced to settle.

• Article 8 Forum More Appropriate?:

It was noted by the Upper Tribunal that having rejected the application for a derivative residence card, the Secretary of State informed the two Appellants  that the decision did not require them to leave the United Kingdom and invited  them to make a claim under Article 8 with reference to Appendix FM and paragraph 276ADE if they wished to do so.  It was observed that in the case of Ms Thinjom, the grounds of appeal to the Tribunal did not raise an Article 8 claim. In the case of Mr Ayinde, the grounds of appeal to the Tribunal were considered to  have  raised a formulaic assertion that the Secretary of State’s decision was in breach of Article 8 but there is no suggestion this was pursued before the First-tier Tribunal. The Judge made no mention of a viable Article 8 claim and there was no cross-challenge before the Upper Tribunal that the First-tier Tribunal Judge should have determined such a claim. Therefore no Article 8 claim was  before the Upper Tribunal.

It was also observed by the Upper Tribunal  that originally, the  appeal contained three linked cases. The third appeal concerned a claimant, a citizen of Algeria, the mother of a British citizen born 4 January 2012, who sought leave to remain in the United Kingdom with her son, and the child’s father.  This  was also a claim by a foreign national seeking to remain as the carer of a Union citizen, the application was made pursuant to Article 8 of the ECHR and in pursuit of a protected private and family life and not under the EEA Regulations.  It was  noted that the case  was, therefore, of a radically different character from the two appeals. At the outset of these appeals, the Secretary of State offered to make a fresh decision and the parties in the third appeal settled the appeal before the Upper Tribunal  in the form of an order.

Having considered that the First Tier Tribunal erred  in allowing  the  two appeals, it was considered by the Upper Tribunal that  is for these reasons that such  claims were  more readily conceived in terms of Article 8.  The Upper Tribunal stated that  factors that render the forced departure of a British citizen less and less likely (dependence on the raft of assistance provided by the state, the local authority and the health service) are likely to add weight to a human rights claim whilst diminishing the strength of a claim based upon forced departure. It re-enforced the soundness of the Secretary of State’s  approach in the third of the formerly conjoined appeals.

The Upper Tribunal  however acknowledged that whilst significantly different on the facts,   the third withdrawn case  underlined  the place in the legal system where the claims of the two  appellants properly lie and that the claims do not lie under the Immigration (European Economic Area) Regulations 2006 as amended.

CONSIDERATIONS AND CONCLUSION

 The Upper Tribunal pointed towards Appendix  FM and the Immigration Rules.

The first Appellant  from Nigeria, not  requiring care himself,  is clearly unable to reply upon  the  onerous adult dependant  relative rules, which would  in any case require  obtaining of prior  entry clearance.

As regards reliance upon paragraph 276ADE of the Immigration Rules, having regard to private life arguments,   having only  arrived in 2001, he would be unable to  show that he  meets  the “20year requirement”.

Seeking to argue that although he has been here  less than 20 years but  that  there would be very significant obstacles to  his  integration into Nigeria, would be very unlikely to succeed in light of the   difficult  in -built test  within paragraph 276ADE (vi).

Raising exceptional circumstances is a possibility, however,  in particular as the appellant is an adult child, he  would also  need to have regard to and distinguish   the case of Kugathas v SSHD 2003] EWCA Civ 31 which provides:

“14.Mr Tam relies in particular on the Commission’s decision in S v United Kingdom (1984) 40 DR 196. At page 198 of the report, the Commission said:

• “Generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.”

This, while it is not black-letter law, sets out what I would accept is a proper approach.

25.Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa. It is not, however, essential that the members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, although in my judgment it will probably be exceptional. Accordingly there is no absolute rule that there must be family life in the United Kingdom, as the Immigration Appeal Tribunal held.”

As regards the second Appellant from Thailand, there appearing to be no child to the marriage, and having no leave  to remain,  it might be that in the consideration of  a claim under Appendix FM,   by  reference to  the criteria  for applications for  limited leave to remain as a partner, in the course of consideration of  the   claim,  she might be expected to return home and apply for entry clearance as a spouse and might be met with the  case of R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 00189 (IAC), which provides in its headnote:

“(i)     Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to re-join family members in the U.K. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the U.K. but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case-law concerning Chikwamba v SSHD [2008] UKHL 40.

(ii)      Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a claimant to make an application for entry clearance would only “comparatively rarely” be proportionate in a case involving children (per Burnett J, as he then was, in R (Kotecha and Das v SSHD [2011] EWHC 2070 (Admin)).

(iii)     In an application for leave on the basis of an Article 8 claim, the Secretary of State is not obliged to consider whether an application for entry clearance (if one were to be made) will be successful. Accordingly, her silence on this issue does not mean that it is accepted that the requirements for entry clearance to be granted are satisfied.

(iv)     In cases where the Immigration Rules (the “IRs”) do not fully address an Article 8 claim so that it is necessary (pursuant to R (Nagre)) to consider the claim outside the IRs, a failure by the decision maker to consider Article 8 outside the IRs will only render the decision unlawful if the claimant in fact shows that there has been (or, in a permission application, arguably has been) a substantive breach of his or her rights under Article 8”.

The considerations in regards to  the success of the claims by reference to Appendix FM and Article 8 might have been at the forefront of the two  Appellants and  probably also  have formed   the  basis upon which  why a separate Article 8 claim was not advanced.

For now however,  unless  a further  challenge  by  any of the two Appellants( or any other future  claimants)  proceeds and  succeeds,  the  decision of the Upper Tribunal appears   to  have firmly closed  the door in relation to arguments  that foreign  national carers can rely upon the principles in the case  of Zambrano  to seek to obtain a right of residence in the UK  by reference to adult dependant  British citizens.