Zambrano claimants applying under the Immigration (European Economic Area) Regulations 2016 are being railroaded by the Home Office.  Access to a derivative right of residence is being severely restricted, if not shut altogether.

The Home Office’s interpretation of the effect of Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028 as set out in their current Guidance, Derivative rights of residence, is intended to not only shut out as many Zambrano applicants as possible but refuse to such claims.

Via amended guidance, Derivative rights of residence published on 2 May 2019, Home Office caseworkers are currently being instructed that Zambrano applications are to be refused if the applicant has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim.

The Home Office seem to be not only making up the law as they go along but extending it.

 

Basics- Derivative rights of residence:

As confirmation of a derivative right of residence, a person can apply for a derivative residence card.

A person may qualify for a derivative right of residence in one of the following categories:

• Zambrano cases
• Chen cases
• Ibrahim and Teixeira cases
• Dependant child aged under 18 of a primary carer in one of the categories set out above

The Zambrano judgment ( Ruiz Zambrano v Office National de l’Emploi (C-34/09) 8 March 2011 [2012] QB 265), established that European Union (EU) 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 European Economic Area (EEA).

The primary carer of a British citizen will have a derivative right to reside in the UK if the British citizen:

• is also residing in the UK
• would be forced to leave the UK, and the EEA, should the primary carer be denied such a right

Provision is made to recognise a person’s derivative right of residence on the basis of the Zambrano judgment in the Immigration (European Economic Area) Regulations 2016 under Regulation 16(5):

“Derivative right to reside

This section has no associated Explanatory Memorandum

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.

……………………………….”

The regulations do not impose an age limit on the relevant British citizen who is dependent upon their primary carer.

 

What the Policy Guidance states:

Policy Guidance, Derivative rights of residence currently instructs Home Office Caseworkers as follows:

“Alternative means to remain in the UK

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”.

 

Patel in the Court of Appeal – Factual Background:

In the conjoined appeals in Patel, the Court of Appeal considered the question of derivative claims for residence in the United Kingdom by claimants without rights of residence, based upon their care for British citizens who are their “direct relatives” whether children or adults in need of care. The Court was asked to consider whether the approach was altered by the decision of the CJEU in Chavez-Vilchez and Others v Raad van Bestuur van de Sociale Verbekeringsbank and Others (10 May 2017) (Case C-133/15) (Grand Chamber), [2017] 3 WLR 1326, [2017] 3 CMLR 35.

It is important to set out the factual background to the claimants involved in the litigation in Patel so as to better “appreciate” in part the originations of the Secretary of State’s formulation of his amended policy guidance as set out above.

• Mr Shah, a Pakistan national born on 2 September 1986 came to the UK in August 2008 as a student but his leave to remain was revoked in 2012. After making an unsuccessful claim on human rights grounds, he applied for a Derivative Residence Card on 2 December 2013, which was refused on 28 March 2014. He appealed to the First Tier Tribunal against that decision. His appeal was based on the claim that he was the primary carer of Aaryan Shah, a British citizen, born on 20 June 2013, his parents having undergone a civil marriage on 10 October 2012. Mr Shah’s wife was a UK citizen. The FTT accepted the evidence that Mr Shah was the primary carer of the child. He did not work and she did. The evidence was that his wife worked during the day, during which time Mr Shah cared for the child. The mother also cared for the child when not at work, and there was no suggestion she was incapable of caring for the child in any way whatsoever.
• Mr Bourouisa, an Algerian citizen, born in 1983 entered the United Kingdom illegally in December 2004. He married a British citizen in 2008. Their son was born in June 2009. On 7 April 2014, Mr Bourouisa,  applied for a Derivative Residence Card as the primary carer of his son Adam, who was a British citizen. The Secretary of State refused the card on 9 May 2014 on the ground that Adam would not be compelled to leave the United Kingdom.
• Mr Patel, an Indian national, was born on 11 September 1986. He entered the United Kingdom in February 2010 as a Tier 4 (general) student migrant with leave to remain until 13 June 2012. On 8 June 2012, he sought indefinite leave to remain outside the rules, which was refused in January 2013. His appeal against that decision was dismissed in October 2013 and permission for further appeal was refused. On 27 June 2014, Mr Patel sought leave to remain on the basis of his family and private life, and on 29 August 2014 that application was refused. On 4 December 2014, Mr Patel applied for a Derivative Residence Card, claiming to be the primary carer of a British citizen, his father. Both his parents are UK citizens.

The claimants in Shah and Bourouisa argued that Chavez-Vilchez represented a softening of the Zambrano principle, sufficient for them to succeed. The claimant in Patel argued likewise, applied to a dependent adult. The Secretary of State submitted that the case of Chavez-Vilchez added nothing to the cases, none of which concerned children whose sole effective carer would be forced to leave the country.

 

Patel- Court of Appeal’s considerations:

The Court of Appeal considered as follows in Patel:

• The Court observed that the European authority after Zambrano in the period before Chavez-Vilchez distinguished between cases where both parents, or the single parent with care of a child or children, were leaving the EU, and those where one parent in a family could remain. It was noted that in Zambrano, the departure of both parents from Belgium would in practice compel the departure of their very young children, and thus deprive them perforce of their EU citizenship rights. In Dereci and Others (C-256/11, EU:C:2011:734), the mother of the children had Austrian citizenship, and if she chose to remain in Austria, the children could remain. If they left Austria, it was an exercise of choice to keep the family together, not a deprivation of rights by compulsion. That distinction stood despite the consideration of family life enshrined in Article 7 of the Charter and the rights of the child enshrined in Article 24.
• The Court of Appeal further observed that English cases have followed a similar line, in construing European authority and the 2006 Regulations. Reference was made to Harrison v Secretary of State for the Home Department [2012] EWCA Civ 1736 [2013] 2 CMLR 23, which was concerned with the application of the Zambrano principle in a deportation case. In Harrison, Elias LJ observed (paragraph 55) that in the cases before him, there was a measure of agreement. The application of the Zambrano test “requires a Court to focus on the question whether as a matter of reality the EU citizen would be obliged to give up residence in the EU if the non-EU national were to be removed from the EU”.  Elias LJ also agreed with the Secretary of State that: “… there is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the European Union. If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci [2012] 1 CMLR 45, but that is an entirely distinct area of protection.” (paragraph 63)
• As regards, Chavez-Vilchez and Others v Raad van Bestuur van de Sociale Verbekeringsbank and Others (10 May 2017) (Case C-133/15) (Grand Chamber), [2017] 3 WLR 1326, [2017] 3 CMLR 35, the Court of Appeal noted that that case concerned a request for a preliminary ruling from the CJEU from eight mothers of minor children with Netherlands nationality “for whose primary day to day care they are responsible”, and the refusal of benefits by the Dutch authorities on the ground that the mothers did not have a right of residence in the Netherlands. The circumstances of the various children and their families were considered. The circumstances varied, but in many instances the fathers of the children gave no, or very limited, care to the children, and the non-resident mothers were the only carers, or provided the great majority of the parenting.
• The CJEU in Chavez confirmed that the relevant question was whether the children would, in practice, be compelled to leave the EU if their mothers were obliged to leave the territory of the EU (paragraph 65). That was a question of fact in each case, and the Court in Chavez touched on a number of factors relevant to that question between paragraphs 68 to 72 of their judgement.
• A further question submitted to the CJEU centred on whether the third-country national parent in such circumstances had the obligation of establishing that the national parent was “not in a position to provide the primary day-to-day care of the child” (paragraph 73). The Court’s answer was to the effect that the third-country national had the burden of showing that a decision to refuse residence to them would deprive the child of the genuine enjoyment of the substance of their rights as citizens: thus the evidential burden lies on the third-country national parent (paragraphs 73-75), whilst the Member State must ensure a system to protect those rights (paragraph 76). The practical or evidential question was re-stated between paragraphs 77 and 78 in Chavez.

 

Patel- underlying principle in Zambrano is undisturbed by Chavez-Vilchez and no alteration in the test of compulsion:

• The Court of Appeal’s conclusions in Patel were that the underlying principle in Zambrano remains undisturbed by Chavez-Vilchez, albeit that in the case of a child dependent on one parent who is a third country national with no right of residence, the State must ensure a careful process of enquiry. However, the third-country national bears the evidential burden of establishing that the child citizen will, in practice, be compelled to leave the EU, unless rights of residence are granted to the (principal) carer parent.
• The Court stated that as always with CJEU authority, the context must be borne in mind when looking at the conclusions of the Court. It was noted that in Chavez-Vilchez, the reference came before any final decision by the referring court. The Dutch court was looking for guidance. There were no crisp findings of fact in respect of the eight different cases. However, the assumption which ran through the cases, whether the EU citizen father assisted with child care or not, was that the EU citizen parent would remain in the Netherlands whatever the outcome of the case. None of these cases were family units with parents living together. In each case the context was: if the non-EU citizen mother leaves and the EU citizen father remains, will the EU citizen child be compelled, in practice, to leave?
• In the Court’ s judgment, the decision in Chavez-Vilchez represented no departure from the principle of EU law laid down in Zambrano, although it does constitute a reminder that the principle must be applied with careful enquiry, paying attention to the relevant criteria and considerations, and focussing not on whether the EU citizen child (or dependant) can remain in legal theory, but whether they can do so in practice. There was no alteration in the test of compulsion.
• It followed that Chavez-Vilchez did not represent any kind of sea-change to the fundamental approach to be taken. It did not mean that English reported cases implementing Zambrano but pre-dating Chavez-Vilchez (such as Harrison, and Sanneh) hold diminished authority.

 

Court of Appeal’s conclusions in Patel:

The Court stated that in both Shah and Bourouisa there was 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. However hard such a choice may be, it was a choice, not a necessity, not compulsion. The evidence in each of these two cases was 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.

The Court of Appeal in Patel further stated at paragraph 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”.

The Court of Appeal allowed the Secretary of State’s appeals in Shah and Bourouisa. This was because in each case, the Tribunal started with the desirability of maintaining the family life, and jumped to the conclusion that there was the requisite compulsion on the child. That was an error. The correct approach would have been to ask is the situation of the child or children such that, if the non-EU citizen parent leaves, the British citizen will be unable to care for the child or children, so that the latter will be compelled to leave. In so doing, the Tribunal must pay regard to all the relevant circumstances indicated by the CJEU in Chavez-Vilchez, and in particular in paragraphs 70 to 72.

The Court of Appeal also emphasised that consideration of the respect for family life (whether considered under Article 8 ECHR or Article 7 of the Charter), although a relevant factor, cannot be a trump card enabling a court or tribunal to conclude that a child will be compelled to leave because Article 8 (or Article 7) are engaged and family life will be diminished by the departure of one parent. Family life will be diminished by the departure of one parent in the great majority of cases. The question remains whether, all things considered, the departure of the parent will mean the child will be compelled to follow.

The Court in Patel further stated as follows at paragraph 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”,

In relation to the case of Patel, the Court stated that the question remains of compulsion. The evidence in the case was too equivocal to amount to compulsion, however one looked at the matter. There was absolutely no doubt as to the parents’ devotion to their son, or his to them. Were he to leave to India, there was no doubt that the parents said they would follow, but that really represented their cultural and individual commitment to each other. That, again, was choice not compulsion.

The evidence was no house existed and  there was no extended family in India. Part of Mr Patel’s case was that medical facilities would be more limited in India. The Upper Tribunal considered, on the evidence, it was inevitable the parents would in fact remain. But even if that were wrong, this situation could in no way be regarded as one of compulsion to leave. At the very least, the case represented a very difficult choice for Mr Patel’s parents however they were not obliged to leave in any sense.

 

Conclusion:

It should be noted that the following, amongst other submissions, were made on behalf of the Secretary of State in Patel before the Court of Appeal:

• “42. In her submissions in relation to this case, Ms Smyth for the Secretary of State began by emphasising that Mr Bourouisa has never made an application for leave to remain in the United Kingdom on family life grounds. I pause to remark that such an application might well be open to him. We have seen material in the course of the case which might well be relevant to such an application, although it cannot bear upon the decision we must take”.

• “68. In Patel’s case, the Appellant has already failed in an Article 8 claim. Had he succeeded, the result would have been a grant of leave to remain which would obviate the need for leave under the Zambrano principle”.

 

These submissions and the Court’s “remark” have now been incorporated into Guidance to be applied by Home Office decision makers as if they were the Court of Appeal’s ruling.

The question that springs to mind is this: why should be the Secretary of State be so focused on coercing potential Zambrano applicants into submitting applications under other routes before relying on Regulation 16(5) ?  There are many reason for this – which of course would all have been the subject of many a meeting before the Guidance was finally published it its amended form.  The sense in the reasoning is however not altogether apparent having regard to the Guidance.

A blanket application of the relevant parts of the Guidance to all Zambrano applications appears grossly wrong. This also does not appear to be the proper effect of a correct interpretation of the principles arising out of Patel.

If to be amended at all so as to read into the Guidance that potential Zambrano applicants are required to first make an Appendix FM/Article 8 claim, then the Guidance needed to make express distinction between the following categories of Zambrano claimants:

• A Zambrano applicant in a marriage/relationship with a British citizen seeking to advance a claim that they are the primary carer of a British citizen child as in Shah and and Bourouisa. The “target” of paragraph 76 mentioned above in Patel appears to be for such persons.
• Zambrano applicant without leave, who is the primary carer of a British citizen child but not in a relationship with the other British citizen parent.
• Joint Zambrano applicants( in a relationship and both without leave to remain in the UK) but who share equal responsibility for their British citizen child. The Guidance states: “Joint applicants. If two primary carers are in the UK otherwise unlawfully, they can both assert a claim to a derivative right in line with regulation 16(9) of the 2016 regulations. Such an application must be considered on the basis that both people would be required to leave the UK for an indefinite period”.  Joint Zambrano applicants in this scenario are, absent any adverse factors, most likely to succeed in their application. Why then point them to the direction of an Article 8 claim?

The Court of Appeal in Patel whilst noting that in Shah, a claim under Article 8 had already been rejected but not in Bourouisa, was clear that this was a separate matter legally and that the Court should not be understood to close off such a claim, in theory or in practice. That is all that the Court stated. In such circumstances, contrary to what the amended Guidance seeks to achieve, submission of an Appendix FM/Article 8 application should not be made a prerequisite before resort can be made to a Zambrano application under the Regulations.

The Court in Patel warned that those without leave to remain, who marry and have children, will not automatically obtain residence in the UK.  In requiring Appendix FM/Article 8 to be the first port of call for future Zambrano applicants, the result is that any negative conclusions/findings of fact resulting from an adverse previous Home Office or Tribunal decision on Article 8 considerations, can subsequently be relied upon by the Home Office on a future Zambrano application/appeal.

Zambrano applications  under the Regulations require a fee of £65.00 in order to be processed whilst Appendix FM/Article 8 claims, not having the benefit of a fee waiver grant, require online payment of £1033.00 by way of application fee as well as £1000.00 NHS Surcharge per applicant.  Just because the Secretary of State appears to be seeking to abruptly stem the flow of a flurry of Zambrano applications, should not result in such applicants being penalized merely because, administratively, there exists a legal loophole for circumventing the exorbitant Article 8 application fees.