The Supreme Court recently published its judgement in Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019).

 

The two appeals in Patel and Shah were previously heard together by the Court of Appeal in Patel v SSHD [2017] EWCA Civ 2028 (13 December 2017) and were noted by the Supreme Court to raise common issues as to the scope of the principle in Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265 (“Zambrano”).

 

Of relevance arising out of the Supreme Court decision (and relevant CJEU caselaw), is the following:

1. Importance of Union Citizenship- Article 20 of TFEU
2. Requirement of “relationship of dependency” between the Union citizen and the third country national
3. A relationship of dependency with an adult Union citizen exists only in “exceptional circumstances”
4. British citizen child: identification of the primary carer and whether there is a relationship of dependency
5. British citizen child: taking into account the right to family life, including the best interests of the child
6. Compulsion to leave Union territory
7. Patel in the Supreme Court- primary carer of a British citizen dependent adult
8. Shah in the Supreme Court – primary carer of a British citizen child
9. Home Office Policy Guidance: the current problem of automatic Zambrano refusals

CJEU judgements considered by the Supreme Court

The Supreme Court having observed at paragraph 24 of its judgement that in KA v Belgium (Case C-82/16) [2018] 3 CMLR 28,  the CJEU drew on its earlier decision in Chavez-Vilchez, also relied heavily on the analysis in KA itself when considering Patel and Shah’s appeals.

At paragraph 7 of its judgement, the Supreme Court noted that the CJEU has effectively adopted an incremental approach to the development of the derived right of residence in a member state that may be enjoyed by a third country national, taking one step at a time in a number of cases which it has decided. The CJEU had now consolidated much of that jurisprudence in the recent case of KA v Belgium (Case C-82/16) [2018] 3 CMLR 28, which was decided after the Court of Appeal gave its judgment.

The following CJEU decisions therefore formed the background to the Supreme Court’s analysis and considerations:

• Grzelczyk v Centre public d’aide sociale Ottignies-Louvain-la-Neuve (Case C-184/99) [2002] ICR 566,
• Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265
• Dereci v Bundesministerium für Inneres (Case C-256/11) [2012] All ER (EC) 373
• v Maahanmuuttovirasto (Joined Cases C-356/11 and C-357/11) [2013] Fam 203
• Rendón Marín v Administración del Estado (Case C-165/14) [2017] QB 495
• Chavez-Vilchez v Raad van bestuur van de Sociale verzekeringsbank (Case C-133/15) [2018] QB 103
• KA v Belgium (Case C-82/16) [2018] 3 CMLR 28

Relevant provisions of TFEU and The Charter considered by the Supreme Court

The Supreme Court also observed  that KA v Belgium (Case C-82/16) [2018] 3 CMLR 28 considered the application of Article 20 of the Treaty on the Functioning of the European Union (the “TFEU”), and articles 7 and 24 of the Charter of Fundamental Rights of the European Union (“the Charter”), and therefore those provisions were considered relevant in Patel and Shah.

Article 20 of the Treaty on the Functioning of the European Union (the “TFEU”), provides:

“Article 20

1. Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

a)  the right to move and reside freely within the territory of the member states; …”

Articles 7 and 24 of the Charter of Fundamental Rights of the European Union (“the Charter”), provide:

Article 7:

“Respect for private and family life

Everyone has the right to respect for his or her private and family life, home and communications”.

Article 24:

“The rights of the child

1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.”

The Supreme Court clarified at paragraph 12 of its judgement that Article 7 reflects Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Article 24 did not, however, have an equivalent standalone right in the Convention although the best interests of the child may require to be considered in appropriate cases under specific articles, such as article 8.  Adults could not rely on article 24. There is a further right in Article 25 of the Charter. This sets out the rights of the elderly and provides that:

“The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.”

 

Importance of Union Citizenship- Article 20 of TFEU

The Supreme Court observed, having regard to paragraphs 47 to 50 in KA in relation to Article 20 TFEU, that the CJEU emphasised the importance of the right to Union citizenship, being a Treaty right. The CJEU explained that a third country national might acquire a purely derived right of residence if their removal might deprive a Union citizen of the benefits of their Union citizenship.

The Supreme Court stated that the CJEU in KA explained that in very specific situations a third country national may have a right of residence if the Union citizen would otherwise be obliged to leave Union territory. Those limits were very important because Charter rights are not engaged unless an EU law right is triggered. The third country national’s derived right of residence is only given in order that the Union citizen’s rights should be effective. That would be the limit of the entitlement under EU law of the third country national to reside in the Union

 

There must be a “relationship of dependency” between the Union citizen and the third country national

As re-iterated by the Supreme Court, there must be a “relationship of dependency” between the Union citizen and the third country national, as per KA:

“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, Ruiz Zambrano, paras 43 and 44 and Chavez-Vilchez, para 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, Dereci v Bundesministerium für Inneres (Case C-256/11) [2012] All ER (EC) 373, paras 65 to 67; O, para 56 and Chavez-Vilchez, para 69).”

 

The relationship of dependency with an adult Union citizen exists only in “exceptional circumstances”

As noted by the Supreme Court, a distinction is drawn between dependence in the case of an adult Union citizen and that of a Union citizen child. A third country national could have a relationship of dependency with an adult Union citizen capable of justifying a derived right of residence under article 20 TFEU only in “exceptional circumstances”, KA [2018] 3 CMLR 28:

“65. As regards, first, the cases in the main proceedings where the respective applicants are KA, MZ and BA, 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 Ruiz Zambrano, 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.”

The Supreme Court therefore pointed out that in Chavez-Vilchez, the CJEU were concerned with the case of a child and it was 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 third country national will have a derivative right of residence by reference to a relationship of dependency with an adult Union citizen.

The Supreme Court considered that 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. 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.

 

British citizen child: identification of the primary carer and whether there is a relationship of dependency

Placing reliance once again upon the paragraphs  set out in KA, the Supreme Court decided that in the case of children, it is first necessary to determine who the primary carer is, and whether there is a relationship of dependency with the  third country national or the national parent:

“70.  As regards, on the other hand, the actions in the main proceedings brought by MJ, NNN, OIO and RI, it must be recalled that the court has already held that factors of relevance, for the purposes of determining whether a refusal to grant a derived right of residence to a third-country national parent of a child who is a Union citizen means that that child is deprived of the genuine enjoyment of the substance of the rights conferred on him by that status, by compelling that child, in practice, to accompany the parent and therefore leave the territory of the European Union as a whole, include the question of who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country national parent (see, to that effect, Chavez-Vilchez, para 68 and the case law cited).

71. More particularly, in order to assess the risk that a particular child, who is a Union citizen, might be compelled to leave the territory of the European Union and thereby be deprived of the genuine enjoyment of the substance of the rights conferred on him by article 20 TFEU if the child’s third-country national parent were to be refused a right of residence in the member state concerned, it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in article 7 of the Charter, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in article 24(2) of the Charter (Chavez-Vilchez, para 70).

72. The fact that the other parent, where that parent is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account must be taken, 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).

73. Accordingly, the fact that the third-country national parent lives with the minor child who is a Union citizen is one of the relevant factors to be taken into consideration in order to determine whether there is a relationship of dependency between them, but is not a prerequisite (see, to that effect, O, para 54).

74. On the other hand, the mere fact that it might appear desirable to a national of a member state, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a member state to be able to reside with him in the territory of the European Union, is not sufficient in itself to support the view that the Union citizen will be compelled to leave the territory of the European Union if such a right is not granted (see, to that effect, Dereci, para 68 and O, para 52).”

 

British citizen child: take into account the right to family life, including the best interests of the child

The Supreme Court observed that in KA the CJEU drew on its earlier decision in Chavez-Vilchez, a case  which concerned several third country mothers, whose children were Dutch and who claimed a derivative right to reside in The Netherlands. The Dutch Government rejected these claims on the basis that the fathers of the children were also Dutch. Some of the fathers had a degree of involvement in their child’s upbringing but they lived apart from the child’s mother and were not the primary carer. The CJEU held that it was not a sufficient answer to the mother’s claim for residence that the father could in theory become the child’s carer. The Dutch court had to assess whether the child would be compelled to leave the Union, and in making that decision the national court had to take into account all the circumstances, including the best interests of the child. The CJEU held  in Chavez-Vilchez [2018] QB 103:

“70. In this case, in order to assess the risk that a particular child, who is a Union citizen, might be compelled to leave the territory of the European Union and thereby be deprived of the genuine enjoyment of the substance of the rights conferred on him by article 20 TFEU if the child’s third-country national parent were to be refused a right of residence in the member state concerned, it is important to determine, in each case, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in article 24(2) of that Charter.

71. For the purposes of such an assessment, the fact that the other parent, a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account must be taken, 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.”

 

Compulsion to leave Union territory

As clarified by the Supreme Court at paragraph 22 of its judgement:

 “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 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 third country carer would actually cause the Union citizen to leave the Union….”

 

Patel in the Supreme Court- primary carer of a British citizen dependent adult

The appellant, an Indian national, Mr Nilay Patel was noted to have no right to remain in the UK. He cared for his parents, both of whom are British citizens and both of whom are ill. His father suffered from end-stage kidney disease and needed dialysis for some eight hours per day. Mr Patel, though not medically qualified, was able through training and experience to administer this. His mother was also ill and immobile. Mr Patel’s case was that that his parents were dependent on him. The First-tier Tribunal (“FTT”) accepted that they were dependent on him. However, it could not be said with confidence that the medication required for the dialysis which Mr Patel performed for his father was available in India. The FTT found that in those circumstances his father would not in fact return with his son but would remain in the UK and be provided with a social services care package and appropriate medical treatment, although this might not give him the same quality of life as he would have if Mr Patel continued to provide him with dialysis and other primary care in his own home. Mr Patel’s subsequent appeals to the Upper Tribunal  and the Court of Appeal were similarly unsuccessful. Mr Patel had sought to establish a right to remain under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) but his claim was dismissed.

The Supreme Court concluded in relation to Mr Patel’s appeal:

• It is the role of the national court to determine whether the removal of the third country national 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 meant that, unless Chavez-Vilchez adopts a different approach to compulsion, Mr Patel’s appeal must fail. There was no question of his being able to establish any interference with his Convention right to respect for his private and family life as he had failed already in that regard.

• The Supreme Court stated that the CJEU in KA drew a distinction between the case of a Union citizen who is an adult and one who is a child at paragraph 76 of its judgement: “It follows from paras 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;
  • where the Union citizen is a minor, the assessment of the existence of such a relationship of dependency must be based on consideration, in the best interests of the child, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties to each of his parents, and the risks which separation from the third-country national parent might entail for that child’s equilibrium. The existence of a family link with that third-country national, whether natural or legal, is not sufficient, and cohabitation with that third-country national is not necessary, in order to establish such a relationship of dependency.”

• The Supreme Court dismissed Mr Patel’s appeal.

 

Shah in the Supreme Court – primary carer of a British citizen child

Mr Shah, a Pakistani national, was the primary carer of his infant son, who is a British citizen. His wife has British nationality. Mr and Mrs Shah and their son all lived together with Mrs Shah  in full-time work outside the home to earn an income for the family. While she was at work, the son remained with Mr Shah, who has no right to live or work in the UK. If Mr Shah were to return to Pakistan, Mrs Shah, on the findings of the FTT, would not remain in the UK but would accompany her husband to Pakistan, and the child would have no option but to go too. In those circumstances the FTT and Upper Tribunal in Mr Shah’s case found that the child would be compelled to leave Union territory and that Mr Shah was, therefore, entitled to a derivative residence card. The Court of Appeal came to a different conclusion. They considered that Mrs Shah would be able to look after their son in the UK and so the requirement for compulsion to leave the UK was not satisfied.

The Supreme Court’s concluded in relation to Mr Shah’s appeal:

-The final sentence of paragraph 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 third country national  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 third country carer was fulfilled. Moreover, the quality of that relationship was 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).

-The Supreme Court considered that Chavez-Vilchez did not in fact have any impact on the Shah appeal. The outcome of that appeal depended 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. 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

-The Court of Appeal  however, introduced into the question of whether the son was compelled to leave the fact that the mother’s decision to leave was her own choice, and that she, like her husband, would have been “perfectly capable of looking after the child” . The Court of Appeal considered that it followed that there was no question of compulsion. It was noted that the Secretary of State sought to uphold this conclusion, submitting that the mother simply wished to keep the family together and that reliance on a desire for family reunification was on the authorities not sufficient to justify a derivative right of residence (see Dereci, para 68; O, para 52; and KA, para 74).

-The Supreme Court refused to accept that submission. It was considered that the overarching question was 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.

-The Supreme Court stated that there was 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 followed that the Court of Appeal was wrong in this case to bring the question of the mother’s choice into the assessment of compulsion.

-It was likewise not relevant, contrary to the submission of the Secretary of State that, had Mrs Shah remained in the UK with the child, Mr Shah could have had no derivative right of residence. On the facts as found by the FTT, the relevant relationship of dependency with Mr Shah was made out and that was not going to happen.

-In those circumstances, the Supreme Court concluded that the Court of Appeal made an error of law when it treated as determinative what could happen to Mr and Mrs Shah’s son if the father left the UK, rather than what the FTT had found would happen in that event. It was not open in law to the Court of Appeal to hold that Mr Shah had no derivative right of residence because the mother could remain with the child in the UK even if the father was removed.

-The Supreme Court allowed Mr Shah’s appeal.

 

Home Office Policy Guidance: the current problem of automatic Zambrano refusals

So, does the outcome in Shah mean that a third country national  primary carer parent, without leave to remain or a right to work, who is in a relationship with a British citizen partner, is able to rely upon a Zambrano application as opposed to an application under Appendix FM, where the requisite level of relationship of dependency with their British citizen child is fulfilled  and the quality of that relationship is  a relevant factor in determining whether the child is compelled to leave the EU?  

On the basis of the Supreme Court decision, yes, depending of course on the fuller facts of the case.

In relation to dependant adult British citizens, even prior to the Supreme Court decision, the principles arising out of KA had been reiterated by the Court of Appeal in April 2019 in  MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580 (09 April 2019:

“23.Subsequent to Patel, the CJEU has again had occasion to consider these issues in Case C-82/16 K.A. v Belgium (8 May 2018). After laying out the Zambrano principle in the usual way at [51] to [52], the court stated the position in relation to adult dependencies at [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.”

24.To similar effect at [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…”

25.It is clear, therefore, that what the Zambrano principle protects is 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.

26.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.”

Despite noting the  high threshold which needed to be crossed, the Court of Appeal in MS (Malaysia) upheld the Tribunal’s decision which had allowed the Appellant’s appeal as it had been shown that there was exceptional dependency, both physical and emotional between the primary carer  adult daughter and her British citizen parent.

In light of the Supreme Court decision, the Home Office should be amending their Policy Guidance, Free movement rights:  derivative rights of residence, Version 5.0, 2 May 2019, in several respects.

Where in assessing whether a British citizen child would be compelled to leave the Union, the Secretary of State must take account of the right to respect for family life, as stated in article 7 of the Charter, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in article 24(2) of that Charter, why, having regard to the May 2019 Guidance, would a Zambrano parent applicant be required by the Home Office to:

-first make an application for leave to remain under Appendix FM to the Immigration Rules, having regard to private and family life provisions and not for a derivative residence card on the basis of Zambrano?

The Guidance relies heavily on the Court of Appeal decision of Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028, and states :

“In the case of Patel v SSHD [2017] EWCA Civ 2028 (13 December 2017), the Court of Appeal ruled that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. The Court also ruled that Zambrano is a not a back-door route to residence for those who have a British citizen child without having or acquiring leave to remain.

This means that a Zambrano application must be refused if the applicant:

• has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available

• has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child”.

The relevant aspects of the Secretary of State’s Guidance are therefore  founded upon the decision of the Court of Appeal in Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028, which provides inter alia:

“75. In both Shah and Bourouisa there is impressive evidence of the strength of family life, and of the determination of the British citizen mother (in each case) to stay with the family unit and move abroad, if the husband and father must leave. Every sensible person would wish to honour such an impulse. However, recognition of that does not alter the fact that however hard such a choice may be, it is a choice, not a necessity, not compulsion. In my judgment the evidence in each of these two cases is clear that were the British parent to remain, they would be able to care for the children concerned perfectly well. The child citizen would be under no compulsion to leave the EU.

76. Quite a number of years ago, Parliament chose to abrogate the historic approach that marriage to a British citizen would bring, in effect automatically, residence in Britain for the spouse. No such automatic consequence now follows, see s.6(2) of the British Nationality Act 1981 and s.2 of the Nationality, Immigration and Asylum Act 2002. Those who marry a British citizen and have children, without having (or acquiring) leave to remain, do so at the risk that they may be compelled to leave the country, facing the real quandary that arises for these families. The Zambrano principle cannot be regarded as a back-door route to residence by such non-EU citizen parents.

79.In these two cases, the question of compulsion did not really even arise, in my view. If one parent left, each British parent would have been perfectly capable of looking after the child. There was no real evidence to the contrary. There would have been a loss of earnings, a diminution in material things and an important loss of two parents living together with their child, but as the evidence stood, it seems to me, there was no proper basis for a finding of compulsion. In Shah, a claim under Article 8 has already been rejected. In Bourouisa, it has not been made. That is a separate matter legally. I should not be understood to close off such a claim, in theory or in practice”.

However, now that the recent Supreme  Court case of Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019) has overturned the Court of Appeal decision, in particular allowing the case of Shah, how can the Secretary of State continue to justify  her practice of automatically refusing Zambrano applications?

Additionally, having regard to the principles arising out of  KA v Belgium (Case C-82/16) [2018] 3 CMLR 28,  on the correct interpretation of Article 20 of TFEU, the Policy Guidance and therefore practice of automatic refusal decisions seems to undermine the effectiveness of Article 20.

KA relevantly provides:

49.In that context, the Court has held that Article 20 TFEU precludes national measures, including decisions refusing a right of residence to the family members of a Union citizen, which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status (judgments of 8 March 2011, Ruiz Zambrano, C‑34/09, EU:C:2011:124, paragraph 42; of 6 December 2012, O and Others, C‑356/11 and C‑357/11, EU:C:2012:776, paragraph 45; and of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 61).

53. In this case, it is clear that the practice at issue in the main proceedings concerns the procedural rulesthat govern, in relation to an application for residence for the purposes of family reunification, whether a third-country national may rely on the existence of a derived right under Article 20 TFEU. 

54. In that regard, while it is indeed for the Member States to determine the rules on how to give effect to the derived right of residence which a third-country national must, in the very specific situations referred to in paragraph 51 of this judgment, be granted under Article 20 TFEU, the fact remains that those procedural rules cannot, however, undermine the effectiveness of Article 20 (see, to that effect, judgment of 10 May 2017, Chavez-Vilchez and Others, C‑133/15, EU:C:2017:354, paragraph 76).

56.Contrary to what is argued by the Belgian Government, the obligation thus imposed, by the national practice at issue, on the third-country national to leave the territory of the European Union in order to request the withdrawal or suspension of the entry ban to which he is subject is liable to undermine the effectiveness of Article 20 TFEU if compliance with that obligation has the consequence that, because of the existence of a relationship of dependency between that third-country national and a Union citizen who is a family member, the Union citizen is, in practice, compelled to accompany the third-country national and, therefore, to leave, also, the territory of the European Union for a period of time that, as stated by the referring court, is indefinite.

57. ………..the fact remains that, when the competent national authority receives, from a third-country national, an application for a right of residence for the purposes of family reunification with a Union citizen who is a national of the Member State concerned, that authority cannot refuse to examine that application solely on the ground that the third-country national is the subject of a ban on entering that Member State. It is the duty of that authority, on the contrary, to examine that application and to assess whether there exists, between the third-country national and Union citizen concerned, a relationship of dependencyof such a nature that a derived right of residence must, as a general rule, be accorded to that third-country national, under Article 20 TFEU, since otherwise the Union citizen would be compelled, in practice, to leave the territory of the European Union as a whole and, therefore, would be deprived of the genuine enjoyment of the substance of the rights conferred on him by that status. In such circumstances, the Member State concerned must withdraw or, at the least, suspend the return decision and the entry ban to which that third-country national is subject

89. Further, it must be borne in mind that, in the first place, the right of residence in the host Member State, accorded by Article 20 TFEU to a third-country national who is a family member of a Union citizen, stems directly from that provision and does not presuppose that the third-country national already has some other right of residence in the territory of the Member State concerned and, in the second place, since the benefit of that right of residence must be accorded to that third-country national from the moment when the relationship of dependency between him or her and the Union citizen comes into being, that third-country national can no longer be considered, from that moment and for as long as that relationship of dependency lasts, as staying illegally in the territory of the Member State concerned, within the meaning of Article 3(2) of Directive 2008/115.

95. It is however clear from the order for reference that the national practice at issue in the main proceedings does not require the competent national authority to undertake such a specific assessment of all the relevant circumstances of the individual case before it can reject an application for residence for the purposes of family reunification that is submitted in circumstances such as those of the main proceedings”.

Whilst the Guidance remains unamended, can it therefore also be argued placing analogy on the principles arising out of KA  in light of its interpretation of Article 20 of TFEU, that the requirements of the Secretary of State’s Guidance, a practice of requiring prior Appendix FM applications, with no guarantee of success or with applicants not being able to make provision towards the exorbitant application fees, has the effect of undermining the effectiveness of Article 20 of TFEU?  

Having regard to the form of the automatic refusal decisions, the Guidance clearly does not require the Secretary of State to undertake  a specific assessment of any or all the relevant circumstances of the individual case before it can reject an application for residence, as required by CJEU caselaw.