Following the Supreme Court Judgement in Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019), Home Office Policy Guidance, Derivative rights of residence, published on 2^nd May 2019 should no longer continue  in existence in the public domain in its current form.

The offending parts of the Guidance have no basis in law, be it EU law or caselaw. Those who drafted it would have known this, in particular as it was foisted upon the public following KA v Belgium (Case C-82/16) [2018] 3 CMLR 28, which was decided after the Court of Appeal in Patel v Secretary of State for the Home Department [2017] EWCA Civ 2028  gave its judgement.

The Home Office’s start and end point in the “ consideration” of Zambrano applications, is not through an application of the relevant provisions of EU law and the principles flowing out of Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265 and other subsequent CJEU cases in combination with the EEA Regulations, but rather the Guidance of May 2019.  

There is therefore an application of automatic refusal decisions without any assessment or examination of derivative residence card applications/individual circumstances, thereby  applying a practice of automatic refusals in a manner akin to that deprecated/rejected in KA v Belgium (Case C-82/16) [2018] 3 CMLR 28 in the CJEU.

The amended aspects of the Guidance when read in their entirety and in conjunction with the caselaw it seeks to rely upon, have never made any sense and on publication 8 months ago, appeared to have been hurriedly drafted, imposed upon the public, with Home Office decision-makers doggedly and blindly applying it to refuse Zambrano applications.

A First Tier Tribunal Judge has just allowed an appeal by non-EEA parents, joint primary carers of a dependent British citizen child, despite the existence of the Guidance in its current form, stating at page 52:

“A derivative right to reside is only available to an applicant who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or a dependent of that primary carer.

 As a Zambrano case centres on a person seeking to remain in the UK with a British citizen, there is significant overlap with the right to respect for private and family life which is protected by Article 8 of the European Convention on Human Rights (ECHR). 

 Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano. 

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

Applicants being refused because it is open to them to apply under Appendix FM to the Immigration Rules should be directed to the information available at www.gov.uk/uk-family-visa.

If an applicant has made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, and they were refused and exhausted their appeal rights recently, you must consider whether a derivative right of residence exists following the caseworking steps outlined in this guidance”.

Free movement rights:derivative rights of residenceVersion 5.0

Summary Background

The Appellants, parents of a British citizen child, were last granted limited leave to remain on the basis of the private and family life 10year route to settlement in 2016, with their leave expiring in May 2019. 

Having made an application for a fee waiver in person, which was refused some weeks prior to their leave expiring, and not having the funds required by the Home Office (£4066 in relation to the application fees and NHS Health Surcharge), they submitted applications for derivative residence cards as joint primary carers of a  dependant British citizen child under Regulation 16(5) of the EEA Regulations.

Their applications were submitted just days following publication of amended Home Office Policy Guidance, Derivative rights of residence of 2 May 2019.

The Appellants sought confirmation under the Zambrano Judgement that they were the primary carers of a British Citizen dependent child. It was put forward that the parents shared equally the responsibility of looking after the EU British citizen child and that in essence they were both joint primary carers and if forced to leave the United Kingdom, their British Citizen child  would also leave.

Just prior to submission of their applications, the following blog post sought to discuss the ambit of the Guidance:

Home Office to refuse Zambrano applications under EEA Regs if Appendix FM/Article 8 alternative route available

The appeal

Despite strong contentions to the effect that the amended Policy Guidance did not accurately reflect the Court of Appeal  decision in Patel v Secretary of State for the Home Department [2017] EWCA Civ 2028  nor the EEA Regulations, their  applications were refused just  a few weeks after submission in July 2019.

Relying on the Guidance, the refusal decision also provided:

“You have previously been granted LTR under the UK’s domestic immigration law. As your circumstances have not changed, you are invited to re-apply to continue on the route to settlement in the UK”.

Both Appellants appealed under Regulation 36 of the Immigration (EEA) Regulations 2016.

When the Appellants lodged their appeals, a further blog post followed:

New Home Office Guidance: Automatic Zambrano refusals emptying EEA Regulations of usefulness

By the time the Appellants’ appeals were heard in January 2020, the Supreme Court had published their judgement in Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019)

Just a day before their appeals were heard, the following blog, in effect flexed part of the arguments to be put forward on their behalf at appeal:

An analysis of the Supreme Court judgment in Patel & Shah and the problem of Zambrano automatic refusal decisions

Part of the arguments advanced at the appeal hearing

Part of the arguments advanced on behalf of the Appellants in relation to the Guidance were:

• The foundations of the Secretary of State’s Policy Guidance as applied to the case could not stand.  The outcome in Shah in the Supreme Court did mean that a third country national  primary carer parent, 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. 
• Chavez-Vilchez v Raad van bestuur van de Sociale verbekeringsbank (Case C-133/15) [2018] QB 103 before the CJEU, concerned cases of separated parents where the Union citizen parent was not the primary carer. As noted by the Supreme Court there is no direct analogy with a case, such as the Shah appeal, where the family is living together. Similarly, as in this case, there was no direct analogy where the family is living together but where both parents are neither settled here nor have British citizenship. The circumstances of this case made it even more critical that a right of residence be granted to the Appellants as on the facts the compulsion test was satisfied.
• Where the Tribunal follows the Secretary of State’s Guidance of May 2019 and does  not undertake a substantive consideration of this appeal, that would in effect amount to an acceptance that the Tribunal’s jurisdiction in these types of appeals has been ousted- which cannot be correct in law, in particular there being a need to follow the proper approach set out by the Supreme Court in  Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019), which drew heavily on KA v Belgium (Case C-82/16) [2018] 3 CMLR 28.
• Reliance by the Secretary of State on her Policy Guidance could not stand having regard to the principles arising  in  KA v Belgium (Case C-82/16) [2018] 3 CMLR 28,  on the correct interpretation of Article 20 of TFEU.

FTT Judge’s considerations

The Judge undertook the following considerations:

• It was noted that the Appellants maintained that the Secretary of State’s decision was not in accordance with the evidence and the law as enshrined in the EEA Regulations.
• The FTT Judge noted that the Secretary of State’s refusal decision was couched in terms that, the Appellants having been granted leave to remain under Appendix FM of the Immigration Rules previously, and there being no change in their circumstances, were  required to apply under the said Rules/ Article 8 Human Rights and that “… a derivative right to reside is a right of last resort which only applies if a person has no other means to remain lawfully in the UK”.
• The Judge however observed that no evidence/legal authority had been filed by the Secretary of State to establish that a Derivative Right to Reside is a “right of last resort” and the Appellants should exhaust Article 8 remedies before applying under the EEA Regulations.
• In his judgement, there was nothing contained within the EEA Regulations which stipulates/requires that an applicant must exhaust all other means to remain lawfully in the United Kingdom under “domestic immigration law”.
• It was further noted that as set out in detailed terms in the Appellants Skeleton Argument, the Secretary of State appeared to be seeking to rely upon a Home Office Policy Guidance “Free Movement; Derivative Rights of Residence, Version 5.0, 2nd May 2019, which appears to be based upon the Court of Appeal decision in Patel v SSHD [2017] EWCA Civ 2028, which in turn appears to have been recently considered by the Supreme Court in Patel v Secretary of State for the Home Department UKSC59(16 December 2019).

 FTT Judge’s conclusions

The First Tier Tribunal Judge made the following findings in allowing the appeal:

• Having regard to the totality of evidence, there was no dispute/challenge in the refusal decision that both Appellants are joint primary carers of a British citizen child.
• There was no dispute that the British Citizen child is residing in the United Kingdom.
• Furthermore, there was no dispute that the British Citizen child would not be able to continue to reside in the United Kingdom or in another EEA state if the Appellants left the United Kingdom for an indefinite period.
• Accordingly, the Judge was satisfied that the Appellants met the criteria under Regulation 16(5) of the EEA Regulations.
• The Judge stated that the Policy relied upon by the Secretary of State does not appear to be accurate in law.  It does not represent a true reflection of the Court of Appeal judgement.
• This conclusion is also apparent from the subsequent Supreme Court consideration of the case.
• The Judge concluded that the reality was the Appellants made an application under the EEA Regulations and on the evidence before the Tribunal, they met the criteria under Regulation 16(5)of the EEA Regulations. As such they were entitled to succeed in their appeal under the Immigration (EEA) Regulations 2016.

Conclusion

It’s now time for the Home Office to remove the offending parts in Guidance  Derivative rights of residence.

The Guidance appears misleading and results, as intended, in a discouragement of or  an unlawful bar on entitled would -be applicants from relying upon the EEA Regulations.