The correct interpretation of Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), was in issue in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (31 May 2022)
The two judgements of the Court of Appeal in Velaj and R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681 address different issues.
Relevantly, Regulation 16(5)(c), with which Velaj was concerned with, requires regard to be had to whether the relevant dependant British citizen would be unable to reside in the United Kingdom or in another EEA State if the primary carer left the United Kingdom for an indefinite period.
In Velaj, the Court was clear that in Akinsanya, that Appellant’s case on Regulation 16 was entirely focused upon Regulation 16(7). Regulation 16(7) defines an “exempt person” for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain (“ILR”). Akinsanya contended that persons with limited leave are not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain.
Whether Ms Akinsanya could satisfy the criteria in Regulation 16(5) if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which the Court considered on her appeal.
As per paragraph 65 of Velaj:
“In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain”.
The Court in Valej therefore in essence sought to interpret the phrases contained in Regulation 16(5)(c):
- “unable to reside in the United Kingdom”
- “If the person left the United Kingdom for an indefinite period”
Summary Background:
The Appellant, a Kosovan national, subject to deportation proceedings under s.32(5) of the UK Borders Act 2007, had his appeal allowed by the First Tier Tribunal(FTT) on the basis his British son would be unable to reside in the UK or another EEA state if both his parents( the child’s British mother with whom the Appellant was in a relationship with) left the UK for an indefinite period and consequently the Appellant had a derivative right of residence under Regulation 16(5).
On the Secretary of State’s appeal, the Upper Tribunal set aside the decision of the FTT for a material error of law. Having concluded that the Appellant did not have a derivative right of residence, the Upper Tribunal re-made the decision on his appeal against the refusal of his human rights claim, accepted that Mrs Velaj would not go to live in Kosovo and found that it would not be reasonable to expect her to do so. The Upper Tribunal concluded that, although the effects of the Appellant’s deportation would be harsh on the family and indeed distressing, given the gravity of the Appellant’s offending it was nonetheless proportionate. The Appellant’s appeal was dismissed in the Upper Tribunal.
Provisions in issue:
Regulation 16 provides that a person has a derivative right to reside during any period in which the person is not an exempt person and satisfies each of the criteria in one or more of paragraphs (2) to (6).
Relevantly, Regulation 16(5) sets out that the criteria in the 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
In Regulation 16(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
Regulation 16(5) is concerned with the rights established by the decision of the Grand Chamber of the Court of Justice of the European Union (“CJEU”) in Ruiz Zambrano Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265, (“Zambrano”) as subsequently re-stated and developed in Chavez-Vilchez v Raad van Bestuur van de Sociale Verzekeringsbank (Case C-133/15) [2018] QB 103 (“Chavez-Vilchez“).
As per Regulation 16(9), “In paragraph … 5(c), if the role of primary carer is shared with another person in accordance with paragraph 8(b)(ii) the words “the person” are to be read as “both primary carers.”
Regulation 16(7) defines an “exempt person” for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain (“ILR”).
Regulation 16(12) provides that a derivative right to reside will not arise where decisions are made to remove or exclude the primary carer on grounds of public policy, public security or public health or misuse of rights.
The 2016 Regulations ceased to have effect, save for certain transitional purposes, on 31 December 2020.
Relevant caselaw:
The principles arising in the following caselaw( CJEU and domestic), were considered by the Court in Velaj:
- Ruiz Zambrano v Office national de l’emploi(Case C-34/09) [2012] QB 265, (“Zambrano”) :- Zambrano concerned a family living in Belgium: the parents were third country nationals of Colombia. Two of their children were Belgian citizens, and therefore citizens of the EU by virtue of Art 20 of the TFEU. The CJEU held that Art 20 of the TFEU precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred upon them by virtue of their status as EU citizens. Unless the father, who was the family breadwinner, enjoyed the right to live and work in Belgium, he and his wife would have to leave the EU, and the children would in practice have to leave with their parents, which would deprive them of the substance of their rights as EU citizens under Articles 20 and 21.
- Chavez-Vilchez v Raad van Bestuur van de Sociale Verzekeringsbank (Case C-133/15) [2018] QB 103(“Chavez-Vilchez“):- Chavez-Vilchez concerned EU citizen children who were living with their third country national mothers in the Netherlands. The fathers, from whom the mothers were separated, were Dutch nationals, who provided the children with varying degrees of support. The Dutch authorities had held that the mothers were not entitled to Zambrano rights (including certain state benefits) unless they could show that the fathers were unable to care for the children. The CJEU held that this approach was too simplistic. The fact that the other parent, who was an EU citizen, was willing to assume sole responsibility for the primary care of the EU citizen child was a relevant factor, but it was not sufficient, in and of itself, to conclude that there was not such a degree of dependency between the child and the third country national parent that the child would be compelled to leave the EU if that parent were denied a right of residence. In deciding whether the child would be compelled to leave, account had to be taken of all the specific circumstances, including the age of the child, their physical and emotional development, their emotional ties to each parent and the risks to the child’s well-being that separation from the third country national parent would entail.
- Patel v Secretary of State for the Home Department[2020] 1 WLR 228 :- the Court described the reasoning underpinning the Zambrano jurisprudence at [22]: “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 [third country national], with whom the Union citizen has a relationship of dependency, is removed.” Lady Arden also observed at [30] that: “The test of compulsion is … a practical test to be applied to the actual facts and not to a theoretical set of facts.”
- R(Akinsanya) v Secretary of State for the Home Department[2022] EWCA Civ 37, [2022] 2 WLR 681, (“Akinsanya”) :- The claimant in Akinsanya was a national of Nigeria who was the sole primary carer for a British Citizen child. She was initially issued with a 5 year residence card as a Zambrano carer, but she was subsequently granted 30 months’ leave to remain in the UK under Appendix FM to the Immigration Rules. She then made an application for ILR under the EU Settlement Scheme (“EUSS”). She contended that she met the criteria for ILR set out in Appendix EU to the Immigration Rules because she was a person who had a Zambrano right to reside and she had completed the requisite continuous qualifying period of five years. The Secretary of State argued that Ms Akinsanya did not qualify under the EUSS because Annex 1 to Appendix EU defined “a person with a Zambrano right to reside” as excluding persons who had leave to enter or remain in the UK unless it had been granted under Appendix EU itself. It was contended on Mrs Akinsanya’s behalf that the definition in limb (b) of Annex 1 to Appendix EU did not properly reflect the Zambrano jurisprudence (Ground 1) and/or it did not properly reflect the language of Regulation 16 of the 2016 Regulations (Ground 2). It was argued that there was nothing in Regulation 16 which precluded someone with limited leave to enter or remain in the UK from acquiring (or keeping) derivative rights under that Regulation.As per Underhill LJ in Akinsanya at paragraphs 33 to 36 the issue, was whether the Secretary of State had, in formulating the Annex 1 definition, erred in her understanding of (a) the Zambrano jurisprudence and (b) Regulation 16 of the EEA Regulations, by proceeding on the basis that a Zambrano right did not arise in circumstances where the carer had any form of leave to enter or remain. If the Secretary of State was wrong about that, it was agreed that the impugned decision would have to be quashed.The Court in Akinsanya found for the Secretary of State on the first issue. After analysing the Zambrano jurisprudence, including Iida v Stadt Ulm (Case C-40/11) [2011] Fam 121 and Secretary of State for the Home Department v A (Case C-115/15) [2017] QB 109, Underhill LJ concluded that as a matter of EU law, a Zambrano right is a right of last resort which does not arise if the third-country national carer otherwise enjoys a right under domestic law to reside in the member state in question.However, the conclusion that the definition in Annex 1 to Appendix EU did accurately reflect the Zambrano jurisprudence was not the end of the matter. As Underhill LJ explained at paragraph 57 in Akinsanya, it was unclear whether in framing that definition the Secretary of State intended to restrict rights under the EUSS to people whose rights to reside at the relevant dates directly depended on Zambrano, or whether her intention was to extend those rights to “all those carers whose removal would result in an EU citizen dependant having to leave the UK”. The Court could not, and was not required to, explore the Secretary of State’s purpose in framing the definition because it accepted Ms Akinsanya’s case on the construction of Regulation 16.
The issue in Velaj:
In Velaj, the appeal concerned the correct interpretation of Regulation 16(5)(c) of the 2016 Regulations which defines the circumstances in which a third country national who is the primary carer of a British Citizen has a derivative right to reside in the UK.
The issue which arose in the appeal was whether a person deciding whether the requirements of Regulation 16(5)(c) are fulfilled must consider whether the British Citizen dependant would be unable to reside in the UK on the assumption that the primary carer (or both primary carers, as the case may be) will leave the UK for an indefinite period (irrespective of whether the assumption is correct); or whether the decision-maker must consider what the impact on the British Citizen would be if in fact the primary carer (or both primary carers) would leave the UK for an indefinite period.
The Court of Appeal considered that it was common ground that the Appellant would not qualify for a Zambrano right under the European jurisprudence because as a matter of fact, his son would not be compelled to leave the EU if he were denied a derivative right of residence. He would be able to stay in the UK with his British Citizen mother, who shared primary caring responsibilities with his father and who would not leave the UK if he were returned to Kosovo. It was also common ground that until the amendments were made by the 2018 Regulations, Mr Velaj would not have qualified as a “primary carer” because his wife, being a British Citizen, was an exempt person.
The Appellant’s case turned on the proposition that, on the true construction of Regulation 16(5) of the 2016 Regulations, he acquired rights under domestic law which go further than the minimum rights guaranteed to Zambrano carers under EU law.
Court of Appeal’s considerations and conclusions on the issues:
The Court of Appeal’s considerations included the following:
- It was not accepted that Regulation 16(5)(c), as modified by Regulation 16(8) and (9), admits of only one interpretation.
- The focus is on whether the British Citizen dependant would be “unable” to remain in the UK “if” something happens – i.e. on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. Given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.
- “If the person left the UK for an indefinite period” could either mean “in the event that the person [in fact] left the UK for an indefinite period” or “on the hypothesis that the person will leave the UK for an indefinite period (regardless of whether in fact he would do so)”. The former seemed to the Court to be the more natural interpretation, and carried with it the necessary implication that the postulated event (here, leaving the UK) is realistic, and not just theoretical. A purely hypothetical event could have no impact, in practice, on the ability of the child or other British Citizen dependant to remain in the UK.
- It is clear from Chavez-Vilchez and Patel that the question whether the dependant EU citizen would be “unable to reside in the UK” depends on a fact-specific inquiry. It requires a nuanced analysis of inability, and not a simple analysis of a hypothetical question, and that must mean that the decision-maker is looking at what is likely to happen in reality. The “key issue of inability to reside in the United Kingdom requires detailed consideration and a causal link with the departure of both carers”.
- That interpretation is also consistent with the stated intention to give effect to Zambrano rights, whereas the rival interpretation would confer a new species of purely domestic derivative rights on someone who would never meet the Zambrano test (or the test in Chen or Ibrahim or Teixeira), in circumstances where the departure of that person from the UK would in practice have no effect at all upon the ability of the British Citizen dependant to remain in the UK. The question whether the legislator is likely to have intended this consequence admits of only one answer in the present case, and that is no.
- Requiring the decision maker to assume that both primary carers will leave the UK when one of them will undoubtedly stay behind also precludes the type of nuanced inquiry that was envisaged in Chavez-Vilchez.
- Assuming that “required to leave” is given a wider meaning than “legally compelled” in line with Zambrano itself that means “in the event that P will be forced to leave the UK”. The decision-maker is looking at the likely impact upon the child of the primary carer being forced by law or by economic pressure to leave the UK. It presupposes that on the facts of the specific case, this is a realistic hypothesis.
- In the Court’s judgment there was nothing in the decision in Akinsanya which precluded the Court in Valej from adopting that construction of Regulation 16(5)(c).
The ratio in Akinsanya- understanding what the case was about:
Velaj is clear:
“59.It is important to understand what that case was. It is set out at [59] of the judgment in Akinsanya:
“the claimant’s case is that limb (b) of the Annex 1 definition is inconsistent with the definition of “exempt person” in regulation 16 (7). Head (iv) of that definition covers a person “who has indefinite leave to enter or remain in the United Kingdom”; but it says nothing about persons with only limited leave. The claimant contends that persons with limited leave are accordingly not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain, so long as they satisfy the criteria under one of paragraphs (2)–(6).” [Emphasis added].
60.Thus Ms Akinsanya’s case on Regulation 16 was entirely focused upon Regulation 16(7). She accepted that if she was not exempt, her entitlement to a derivative right to reside would depend on her being able to satisfy the criteria in Regulation 16(5). However the question whether she could or could not do so if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which this Court considered on her appeal”.
In Velaj, the Court observed that Ms Akinsanya had already satisfied those criteria and obtained her derivative rights of residence as a Zambrano carer before she was granted limited leave to remain. She met the requirements of Regulation 16(5)(c) or its predecessor, Regulation 15A(4A), at the time when she was granted her derivative right of residence. The only question in her case would be whether the grant of limited leave to remain somehow superseded her Zambrano right or meant that she was no longer entitled to it – she was contending that it did not because the two rights could co-exist. It was common ground that if she won on either of her grounds of appeal, the impugned decision to refuse her claim under the EUSS (on the basis that she did not qualify) would have to be reconsidered by the Secretary of State.
As Underhill LJ pointed out at paragraph 60 in Akinsanya, the claimant’s case was clearly right on any natural reading of Regulation 16(7), and it also reflected the understanding of the Home Office at the time when the Amendment Regulations, which introduced the concept of “exempt persons” were made. Guidance issued to UK Border Agency staff in 2012 stated that: “where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate that they meet all other requirements of regulation 15A, then they can acquire a derivative right of residence.”
The focus of the argument thereafter was on whether Regulation 16(7) should be given a construction that was different from its ordinary and natural meaning.
The Court in Velaj set out what the ratio was in Akinsanya:
“64.Whilst accepting the likelihood that in making the relevant parts of Regulation 16 the SSHD intended, in a broad sense, to do no more than to implement the minimum requirements of Zambrano, Underhill LJ said that this begged further questions. The SSHD may have misunderstood what those requirements were, since Iida and A had not been decided when the Amendment Regulations were made in 2012. Alternatively,
“it may be that the Secretary of State took the view that allowing a Zambrano right to reside to those who already had limited leave to remain was more straightforward than having to consider whether particular forms of leave to remain, and in particular the conditions about working to which they might be subject, were fully consistent with Zambrano rights.”
In the end, however, he said that the short answer was that the language of Regulation 16(7)(c)(iv) [which referred specifically to persons with ILR] was simply too clear to allow it to be construed as covering persons with limited leave to remain. That was the ratio of the decision in Akinsanya”.
Velaj emphasises;
“65.In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain.
66.The Court in Akinsanya did not have the benefit of hearing the arguments that were advanced in the present case. Those arguments would have had no bearing on the point of construction of Regulation 16(7) which determined the outcome.…
67.Mr Cox submitted that the criteria for the grant of the derivative right could not be met by a sole primary carer with limited leave to remain if the words “if the person left the UK for an indefinite period” in Regulation 16(5)(c) were not construed in the manner for which he contended, i.e. as a purely hypothetical premise. If a carer already had limited leave to remain they would not, in fact, leave the UK for an indefinite period and the child would not be compelled to leave with them.
68.Although I see the force of that argument, the immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child.
69.I can also envisage a Zambrano carer whose limited leave to remain is due to expire making an application under Regulation 16(5)(c) and succeeding on the basis that they would have to leave the UK as soon as their limited leave expired and the child would have to go with them. In such a case if the decision-maker asks “what will happen to the child in the event that the primary carer leaves the UK for an indefinite period?” they will not be positing a completely unrealistic scenario. In any event, the practical difficulties of someone with limited leave to remain being able to satisfy the requirements of Regulation 16(5)(c) would not be a justification for construing those requirements in a manner which was clearly unintended.
71.Accordingly there is nothing in the decision in Akinsanya that precludes Regulation 16(5)(c) from being construed as I consider it should be construed”.
The appeal in Velaj was dismissed.
Conclusion
The interpretation of Regulation 16(5)(c) in Velaj enabled the Court to reach the conclusion that the appeal could not succeed.
The Court however did not undertake a detailed consideration as to how on the facts the particular appeal failed. Their analysis and conclusions on Regulation 16(5)(c) are however enough to enable a reader to grasp not only that the Appellant failed to meet the requirements of Regulation 16(5)(c) but:
- rejected by the Court were submissions on behalf of the Appellant that the decision-maker must determine whether the British citizen would be unable to reside in the UK on the purely hypothetical premise that their primary carer (or both primary carers) will leave the UK for an indefinite period
The Court’s view was that focus is on whether the British Citizen dependant would be “unable” to remain in the UK “if” something happens – i.e. on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. The Court stated that given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.
Ultimately, the assessment of whether the British citizen would be unable to reside in the UK, the EEA if the applicant were required to leave the UK for an indefinite period requires a fact-based enquiry looking at whether, in practice, the British citizen would be unable to remain in the UK, or an EEA Member State or Switzerland, if the applicant (or, as the case may be, both primary carers) were in fact required to leave the UK for an indefinite period. There is no need to make assumptions.