Adult Zambrano primary carer case succeeds despite Court of Appeal finding test on adult dependents a very demanding one

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A person may qualify for a derivative right of residence as the primary carer of a British citizen child or British dependent adult, where requiring the primary carer to leave the UK would force that British citizen to leave the European Economic Area (EEA), ie a Zambrano case. The 2016 EEA regulations do not impose an age limit on the relevant British citizen who is dependent upon their primary carer

 

 

The Zambrano judgment established that European Union member states cannot refuse a person the right to reside and work in a host member state, where to do so would deprive their EU citizen children of the substance of their EU citizenship rights by forcing them to leave the EEA. This means that the primary carer of a British citizen who is residing in the UK has a right to reside under EU law if their removal from the UK would require the British citizen to leave the UK and the EEA.

 

A person is only able to derive a right of residence under Zambrano where the British citizen would be forced to leave the UK and the EEA if their primary carer was removed from the UK for an indefinite period.

 

The Secretary of State’s relevant Policy Guidance Derivative rights of residence indicates on its face that primary carer applicants of a dependent adult face significant hurdles, quite likely to result in a refusal of a right of residence application:

 

“Alternative care

 

Where a person has demonstrated they are a primary carer, you must consider whether refusing or removing that primary carer would result in a breach of the relevant person’s rights under European Union (EU) law. If there is another person in the UK who can care for the relevant person, you must refuse the application for a derivative residence card. This is because the relevant person could continue to exercise their rights under EU law if the primary carer was required to leave the UK for an indefinite period.

 

For adults, alternative care may include, but is not limited to:

 

  • local authority care provisions
  • private care provisions
  • other direct relatives

 

The burden of proof is on the applicant to provide details of the current care arrangements, including:

 

  • why care is required for that person
  • what care provisions are currently in place
  • what enquiries have been made as to alternative care arrangements and why these are not suitable

 

…………………..

 

Physical or mental impairment

 

This section tells you how to consider applications for a derivative residence card on the basis that the person is the primary carer of a dependent adult

 

Where a person is claiming a Zambrano or Ibrahim and Teixeira derivative right of residence on the basis that they are the primary carer of another person who is over the age of 18 years, the level of evidence required to demonstrate primary responsibility will be significantly higher.

 

In such instances, only evidence that shows the adult’s dependence on the primary carer is due to a severe physical or mental disability is likely to bring that primary carer within scope of regulation 16(4) or 16(5).

 

Such cases are likely to be rare and will need to be considered on an individual basis”.

 

The recent Court of Appeal’s in MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580 (09 April 2019) provides relief to some extent, as the Appellant in that case fared much better when compared to the circumstances faced by the appellants in Ayinde and Thinjom [2015] UKUT 560 (IAC), as set out in a previous blog post: Derivative Rights of Residence( Zambrano Adults): Reasonableness Test and Quality of Life Arguments Dangerous, Inapplicable and Inarguable Says the Upper Tribunal

 

 

Issue raised in MS(Malaysia):

 

The appeal in MS raised the question of whether the adult primary carer of her EU citizen parent could acquire a derivative right to remain in the United Kingdom based on her parent’s dependency on her for her care.

 

The appeal turned on the application of Regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006 which sought to give effect to the jurisprudence of the Court of Justice of the European Union explained in Case C-34/09 Ruiz Zambrano v Office National de l’Emploi [2012] QB 265 (“Zambrano“) and subsequent cases. That jurisprudence was recently the subject of review in the Court of Appeal in Patel v SSHD and SSHD v Shah and another [2017] EWCA Civ 2028

 

 

Relevant Background

 

The Appellant, MS, a citizen of Malaysia, was born on 16 November 1960. Her mother, DK, is a British and EU citizen who was born on 12 July 1931. MS has at all material times been DK’s primary carer.

 

As regard DK’s state of health and her care needs, she had restricted mobility, used a walking stick and Zimmer frame in the house, and a wheelchair outside. She suffered from short-term memory loss, this meant she required assistance to take her daily medication (which included 9 different drugs). Her partial eyesight was deteriorating. In addition, she had diabetes, hypertension (high blood pressure), heart failure, chronic kidney disease, cerebrovascular disease, osteoarthritis and peripheral vascular disease.

 

As to her care needs, DK needed help with showering and dressing, being unable to do so independently, and required a carer to apply medication to her arms, legs and feet. She was doubly incontinent, requiring assistance with wearing and disposing of incontinence pads. She needed to have food prepared for her, according to her religious dietary requirements and beliefs, three times a day. Her carer needed to deal with washing, drying and ironing her clothes. Various adjustments had been made to her home to assist with her restricted mobility, such as a special shower and stair lift. She needed help with shopping and the paying of bills and bank transactions. She spoke Punjabi and had limited English, and as such she needed help with appointments at the doctor’s surgery, and elsewhere.

 

DK was widow and a devout, orthodox Sikh. In addition to MS she had two daughters and a son. The two daughters were unable to care for their mother. The son, SS, came to the UK in 2005 to care for his mother, and did so again in 2007, but died in 2012. During the period when SS cared for his mother, MS also attended her mother to provide intimate personal care that her son was unable to provide.

 

MS made an application for a derivative residence card as her mother’s primary carer. The application was refused by the Secretary of State. Ultimately, the appeal came before the Court of Appeal.

 

 

Zambrano principles

 

In Zambrano, the applicant and his wife were Colombian nationals. They had two children who had Belgian nationality and who were therefore citizens of the European Union. The applicant was refused unemployment benefit because the prior work on which he relied to obtain that benefit did not count, as he had not held a work permit at the relevant time. His case was that Articles 20 and 21 TFEU conferred on a relative in the ascending line who was a third country national, a right of residence in the member state of which his children were nationals and in which they resided, and also exempted him from having to obtain a work permit. The Grand Chamber of the Court of Justice found that Article 20 precluded national measures which have the effect of depriving citizens (such as the Belgian children of these Colombian parents) of the genuine enjoyment of the substance of the rights conferred on them as citizens of the European Union. A refusal to grant a right of residence to the third country national with dependent minor children, and a refusal to grant a work permit, has such an effect, because such measures would lead to a situation where the children who are EU citizens would have to leave the EU in order to accompany their parents.

 

 

K.A. and Others (Regroupement familial en Belgique) (Border control, asylum, immigration – Judgment) [2018] EUECJ C-82/16, summarises the principles arising out of the Zambrano:

 

“51.In this connection, the Court has previously held that there are very specific situations in which, despite the fact that secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom of movement, a right of residence must nevertheless be granted to a third-country national who is a family member of that Union citizen, since the effectiveness of Union citizenship would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus depriving him of the genuine enjoyment of the substance of the rights conferred by that status (see, to that effect, judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraphs 43 and 44, and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 63).

 

52. However, a refusal to grant a right of residence to a third-country national is liable to undermine the effectiveness of Union citizenship only if there exists, between that third-country national and the Union citizen who is a family member, a relationship of dependency of such a nature that it would lead to the Union citizen being compelled to accompany the third-country national concerned and to leave the territory of the European Union as a whole (see, to that effect, judgments of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraphs 65 to 67; of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 56; and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 69)”.

 

Provisions of previous 2006 EEA Regulations

 

The previous Regulations provided relevantly as follows:

 

“15A. Derivative right of residence

 

(1) A person (“P”) who is not an exempt person and who satisfies the criteria in paragraph (2), (3), (4) [(4A)] or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.

 

…

 

(4A) P satisfies the criteria in this paragraph if–

 

(a) P is the primary carer of a British citizen (“the relevant British citizen”);

 

(b) the relevant British citizen is residing in the United Kingdom; and

 

(c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.

 

…

 

(7) P is to be regarded as a “primary carer” of another person if

 

(a) P is a direct relative or a legal guardian of that person; and

 

(b) P–

 

(i) is the person who has primary responsibility for that person’s care;

 

…”

 

 

Provisions of 2016 EEA Regulations

 

The current 2016 Regulations state:

 

“Derivative right to reside

 

16.—(1) A person has a derivative right to reside during any period in which the person—

 

(a)is not an exempt person; and

 

(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).

 

…..

 

(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.

 

………………

 

(8) A person is the “primary carer” of another person (“AP”) if—

 

(a)the person is a direct relative or a legal guardian of AP; and

 

(b)either—

 

(i)the person has primary responsibility for AP’s care; or

 

(ii)shares equally the responsibility for AP’s care with one other person who is not an exempt person”.

 

 

Relevant Caselaw considered

 

The applicable jurisprudence of the Court of Justice of the European Union is as follows:

 

 

 

Relevant domestic caselaw is as follows:

 

 

 

Recent ECJ caselaw:

 

In K.A. and Others (Regroupement familial en Belgique) (Border control, asylum, immigration – Judgment) [2018] EUECJ C-82/16 , after laying out the Zambrano principle between paragraphs 52 to 52, the court stated the position in relation to adult dependencies at paragraph 65 as follows:

 

“As regards, first, [the cases where derivative rights were claimed by adult third country nationals of whom the father or partner was an EU citizen], it must, at the outset, be emphasised that, unlike minors and a fortiori minors who are young children, such as the Union citizens concerned in the case that gave rise to the judgment of 8 March 2011, Ruiz Zambrano (C-34/09, EU:C:2011:124), an adult is, as a general rule, capable of living an independent existence apart from the members of his family. It follows that the identification of a relationship between two adult members of the same family as a relationship of dependency, capable of giving rise to a derived right of residence under Article 20 TFEU, is conceivable only in exceptional cases, where, having regard to all the relevant circumstances, there could be no form of separation of the individual concerned from the member of his family on whom he is dependent.”

 

 

To similar effect at paragraph 76 the court said:

 

“It follows from paragraphs 64 to 75 of this judgment that Article 20 TFEU must be interpreted as meaning that:

 

– where the Union citizen is an adult, a relationship of dependency, capable of justifying the grant to the third-country national concerned of a derived right of residence under Article 20 TFEU, is conceivable only in exceptional cases, where, in the light of all the relevant circumstances, any form of separation of the individual concerned from the member of his family on whom he is dependent is not possible…”

 

 

The Court of Appeal’s considerations in MS:

 

The following considerations applied in MS:

 

    • The Zambrano principle protects the right to reside in the Union, as a matter of substance and not of form. The principle does not guarantee any particular quality of life in the Union although, as the consequences for the EU citizen increase in seriousness there will come a point where they are so serious that they will effectively compel the citizen to leave. Whether the boundary (which has impediment on the right to reside on one side and compulsion to leave on the other) is crossed is clearly a matter of fact and degree. What is necessary in each case is to examine the character and quality of the relationship of dependency between the Union citizen and the third country national who is refused a right of residence, because it is that dependency which would lead to the Union citizen being obliged, in fact, to leave the territory of the Union.
    • The test in the case of adult dependents is a very demanding one, which will be met only exceptionally, but remains one of practical compulsion such that the EU citizen is left with no practical choice but to leave the territory of the Union.
    • In allowing MS’s appeal, the Upper Tribunal treated as preserved the First Tier Tribunal’s findings, namely that (a) residential care would not be an adequate alternative arrangement for DK and (b) the quality and standard of DK’s life would be seriously impaired by the removal of MS from the UK.
    • The Upper Tribunal judge correctly identified that the critical question was whether DK would be unable to reside in the UK if MS were required to leave. He went on to say , applying the Upper Tribunal’s decision in Ayinde and Thinjom [2015] UKUT 560 (IAC), that the Appellant must establish as a fact that the British citizen “would be forced to leave the territory of the European Union”
    • The question for both tribunals, as they fully appreciated, was whether the facts which they were evaluating crossed the threshold identified in Harrison and Patel and the CJEU cases between “choice” and “compulsion”.

 

 

The Court of Appeal’s reasoning and conclusions

 

The Court of Appeal reasoned and concluded as follows:

 

  • The judge’s reference to DK’s concern for her daughter arose out of the answers which she gave when giving evidence in the Upper Tribunal. Read in context, these passages were simply the way in which DK chose to express her emotional attachment to her daughter. It was quite plain that this attachment was just one aspect of her exceptional dependency, both physical and emotional, on MS. This evidence did not form anything like the whole of the evidence of DK’s dependency on MS, and the judge was perfectly entitled to take it into account when conducting the analysis required by the authorities. He did not have to resolve its precise contribution to the overall dependency.
  • The Court observed that both sides agreed that the test for compulsion must be an objective one. DK’s evidence that she would feel compelled to leave, or that she would definitely leave, could not be conclusive of the issue of whether, on an objective basis, she would be compelled to leave.
  • The Court of Appeal stated that the judge did not, however, suspend further consideration of the appeal at the point where he concluded that he accepted DK’s evidence, nor did he expressly say that he was treating DK’s evidence as conclusive, as opposed to giving it weight. He went on to explain why, by reference back to all the evidence given before him (including that of MS) and the preserved findings of fact from the decision of the First Tier Tribunal, he considered that DK would inevitably be compelled to leave with MS. Whatever the advantages (to some) might be of remaining in the United Kingdom, what was paramount for DK, and what deprived her of an effective choice, was her need to remain with her daughter.
  • In the Court’s judgment, the judge conducted a perfectly proper, global, objective assessment, taking account of the evidence of MS and DK and all the other surrounding circumstances. These included the fact that DK required assistance with every part of her daily existence including her intimate care, 24 hours a day, that she had specialised needs as an orthodox Sikh, and that residential care would be inadequate. It was these considerations, having seen and heard the oral evidence of DK and MS, which had led the First Tier judge to find that DK’s quality and standard of life would be, as Elias LJ put it in Harrison, “seriously impaired”. The judge, who also saw and heard these witnesses give evidence in the Upper Tribunal, applied the correct test in law and arrived at a conclusion which was open to him.
  • It was noted that the judge made frequent reference to the availability of medical and social care from the state and took into account the preserved and reasoned finding of the First Tier Tribunal that state provision would be inadequate for DK’s needs.
  • The Court of Appeal however stated that the availability of state-funded medical and social care will, in many cases, make it hard for those who provide care for their elderly relatives to bring themselves within the Regulation. The availability of state care was not, however, to be treated as a trump card in every case, irrespective of the nature and quality of the dependency on the carer which is relied on. Just as the availability of an EU citizen parent to be a carer of a minor child does not render unnecessary an enquiry into the nature of the dependency of the child on her non-EU parent (as per Chavez-Vilchez), the availability of state care does not avoid the need to enquire into the actual dependency of the EU citizen on her adult carer. The availability of alternative care is a relevant, but not always decisive factor.
  • In conclusion, the Court of Appeal did not consider that any of the Secretary of State’s grounds as advanced undermined the judge’s evaluation of the issue of whether DK would be unable to reside in the Union if MS were to leave. The Secretary of State’s appeal was therefore dismissed.

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