Patel v The Secretary of State for the Home Department

In these conjoined appeals, the Court is asked to address the question of derivative claims for residence in the United Kingdom by those without rights of residence, based upon their care for British citizens who are their “direct relatives” whether children or adults in need of care. In particular, we are asked to consider whether the approach is 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.

Article 20 of the Treaty on the Functioning of the European Union [“TFEU”] provides (Article 20.1) that every person holding the nationality of a Member State shall be a citizen of the Union and have the right to move and reside freely within the territory of the Member States (Article 20.2(a)).

Directive 2004/38/EC [“the 2004 Directive”] established various provisions bearing on the freedom of the EU citizen and their family members to “move and reside” within the EU. In Articles 2 and 3, the following definitions are given:

In the Charter of the Fundamental Rights of the European Union the Member States have recognised the following rights:

Mr Zambrano was a Columbian national, as was his wife. They were failed asylum seekers living in Belgium. They had three children. The eldest child held Colombian nationality, but the younger children, born in Belgium in 2003 and 2005, acquired Belgian nationality by birth there. Mr Zambrano’s efforts to acquire Belgian nationality failed, following the birth of the younger children. Following further litigation in Belgium, the Belgian Tribunal referred to the CJEU a series of questions which the Court addressed together, and which the Grand Chamber characterised as asking:

The Court found that the younger children were “undeniably” Belgian nationals (paragraph 40), that citizenship of the Union is intended to be the fundamental status of nationals of the Member States (paragraph 41) and as a consequence:

The decision in Zambrano was shortly followed by the decision in Dereci and Others v Bundesministerium fűr Inneres (C-256/11) 15 November 2011 [2012] All ER (EC) 373, with the like effect. I return to Dereci below.

Mr Pennington-Benton for the Appellant Patel points out that, although Zambrano is treated as the locus classicus for the principles to be applied, the ECJ had in fact considered the problem in the earlier case of Chen v SSHD [2005] QB 325 (C-200/02). The Court there held, on the facts of that case, that a mother could derive a right of residence parasitic upon the child’s rights as an EU citizen. The Court said:

In the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) the United Kingdom gave effect to the 2004 Directive. Following the decision in Zambrano (supra) the Regulations were amended so that the relevant provisions for our purposes read as follows:

The 2006 Regulations, as amended, have been replaced (for the most part with effect from 1 February 2017) by the Immigration (European Economic Area) Regulations 2016. Regulation 16 of the latter is of similar effect to Regulation 15A of the 2006 Regulations.

In a number of cases during this period, the CJEU addressed problems of a similar nature to those giving rise to these appeals. Repeatedly, the CJEU made the distinction between “choice” and “compulsion”, as the Secretary of State characterises the matter. In Dereci (supra) the Court held

In O and Another v Maahanmuuttovivasto Cases C-356/11 and C-357/11, [2013] All ER (EC) 563, the Advocate General made the following observations subsequently approved by the Court:

Putting the matter broadly, the European authority 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. 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, 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. These decisions are not capable of any other explanation.

The English cases have followed a similar line, in construing European authority and the 2006 Regulations. In Harrison v Secretary of State for the Home Department [2012] EWCA Civ 1736 [2013] 2 CMLR 23, this Court was concerned with the application of the Zambrano principle in a deportation case. There was no claim by the Appellants in that case that the Zambrano principle necessarily applied to their cases: they sought a reference to the CJEU to establish that fact. Nevertheless, this Court had to consider the principle and its scope, as the foundation for the ruling on that application. Elias LJ gave the principal judgment, with which Ward and Pitchford LJJ agreed. He began by observing that Zambrano had “removed the requirement for even an exiguous cross-border link” before the principle applied (paragraph 12). He went on to consider Dereci, observing that Advocate General Mengozzi in that case had concluded that “the substance of the rights attaching to the status of European Union citizens” within the meaning of Zambrano “does not include the right to respect for family life enshrined in Article 7 of the Charter and Article 8 of the Convention” (paragraph 24). Elias LJ went on to stress the extent of the conclusion of the CJEU as follows:

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”. The question which divided the parties was:

In his discussion, Elias LJ agreed with the Secretary of State that:

In the ensuing paragraphs of his judgment, Elias LJ noted that the approach of the CJEU fully took into account the considerable impact on the family life of those affected by decisions, whether financial, emotional or psychological (paragraph 60). The quality of life might be significantly diminished, whilst the substance of the right of residence was preserved (paragraphs 67-70). For those reasons, the Court rejected the EU grounds of appeal. (Footnote: ¹)

A similar position was stated in this Court in Sanneh v Secretary of State for Work and Pensions [2016] QB 445. Elias LJ once more gave the principal judgment. The Court held that the Zambrano principle did not “guarantee any particular quality of life”.

This 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 Court considered the relevant provisions of the TFEU and Article 2 of the 2004 Directive. 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 referring Court did not describe themselves as seeking to develop new principle, but rather as seeking guidance as to the application of Zambrano:

The CJEU noted that the circumstances of the relevant parents and children were varied:

The Court 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 is a question of fact in each case, and the Court touched on a number of factors relevant to that question:

The third 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 as follows:

It seems clear therefore that the underlying principle in Zambrano is 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.

As always with CJEU authority, the context must be borne in mind when looking at the conclusions of the Court. 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 runs 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?

I address below the specific arguments advanced by the parties, in the context of each case. However, putting the matter broadly, the Respondents Shah and Bourouisa argue that Chavez-Vilchez represents a softening of the Zambrano principle, sufficient for them to succeed. The Appellant Patel argues likewise, applied to a dependent adult. The Secretary of State argues, whether as Appellant or Respondent and whether the argument is advanced by Ms Smyth in Shah and Bourouisa, or Mr Blundell in Patel, that the case of Chavez-Vilchez adds nothing to these cases, none of which concern children whose sole effective carer will be forced to leave the country.

The facts in this case are set out in the judgment of the First-tier Tribunal [“F-tT”], Judge Hussain of 31 December 2014. The Respondent, Mr Shah, was born on 2 September 1986 and is a Pakistani national. He came to the United Kingdom 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 F-tT against that decision. Mr Shah’s appeal was based on the claim that he was the primary carer of Aaryan Shah, a British citizen. The child was born on 20 June 2013, his parents having undergone a civil marriage on 10 October 2012. The Appellant’s wife, Sanya Ahmad, is a UK citizen. The F-tT accepted the evidence that Mr Shah was the primary carer of the child. He does not work and she does. The evidence was that Ms Ahmed works during the day, during which time the Appellant cares for the child. The mother also cares for the child when not at work, and there was no suggestion she was incapable of caring for the child in any way whatsoever. The matter was put to the F-tT that Ms Ahmed “cannot assume full responsibility for him because she works full time. If the Appellant is not allowed to stay in this country, they will have to move the family” [emphasis added]. The core reasoning of the F-tT was as follows:

The matter was appealed to the Upper Tribunal [“UT”] by the Home Secretary. Deputy Upper Tribunal Judge K Drabu CBE upheld the findings below in a decision of 27 August 2015. He noted that the factual findings of the F-tT were not challenged. He noted that Judge Hussain:

Judge Drabu considered the decision in Zambrano and went on to say:

The Secretary of State submits that both the F-tT and the UT took the wrong approach in law. Each recorded that it was the mother’s evidence she would choose to go to Pakistan if her husband were required to leave the European Union. Ms Smyth submits that:

It is submitted there is no evidence whatever that either mother or child would be compelled to leave: that was clearly a matter of choice, in order to keep the family together. Moreover, Ms Smyth submits that in focussing on the assumption (unsupported by the evidence) that Ms Ahmed would be required to give up work and claim benefits if Mr Shah were required to leave the EU, the UT diverted itself from the essential question as to whether the departure of Mr Shah would force his wife and child to leave.

In effect, the Secretary of State submits that the F-tT and UT elided the question emerging from Zambrano with an unarticulated consideration of the Article 8 rights of the family members involved. Having considered that it was in the interests of the family to remain together, there was, in effect, an automatic conclusion to the Zambrano question without more. The conclusion on the evidence should have been that Ms Ahmed was perfectly capable of caring for the young child and therefore there was no compulsion established in the case.

Mr Malik in reply emphasises the formulation of the CJEU in paragraph 71 of Chavez-Vilchez set out above. He argues that the fact that the parent who is a Union citizen is able to assume responsibility for the primary day-to-day care of the child, while relevant, “is not in itself a sufficient ground for conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child will be compelled to leave … the European Union”. As the CJEU specified, the court must go on to take account of the other factors set out in paragraphs 71 and 72 and, critically, in the terms of paragraph 77 of Chavez-Vilchez, to examine whether there is or there is not “such a relationship of dependency between the child and the third country national parent” that refusal of residence to the latter would compel the departure of the child. Mr Malik goes on to emphasise the language used by Ms Ahmed in her evidence, more than once, that if her husband was compelled to leave then she, too, “would have to leave”.

I should note that for the sake of clarity, the Secretary of State has not sought to challenge the finding of the F-tT in this case that the Respondent Mr Shah was the primary carer of the child. Hence, I need not address Mr Malik’s arguments bearing on that ground.

I give my conclusions on this case below.

In this case the facts are set out in the judgment of First-tier Judge Veloso, promulgated on 11 February 2015. This Respondent is an Algerian citizen, born in 1983. He entered the United Kingdom illegally in December 2004 and he married in 2008. His wife is a British citizen. Their son was born in June 2009. On 7 April 2014, the Respondent applied for a Derivative Residence Card as the primary carer of his son Adam, who is of course 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.

That decision was appealed by the Respondent on the ground that he is the full time carer for their son and his wife would not be able to be the carer “because she works” (F-tT judgment, paragraph 5).

Judge Veloso directed himself as to the contents of Regulation 15A of the EEA Regulations and proceeded to find that the Respondent and his wife were credible witnesses and the substance of their evidence was accepted. The Respondent’s wife has worked in a care home since 2008 and works long hours. She is on call outside those hours. She had discussed the matter with her mother, but she (the grandmother) is unable to become the carer. If the Appellant were returned to Algeria that “would mean she would have to quit her job and go on benefits. She would probably also lose her flat. If he left the United Kingdom she would follow him to Algeria” (paragraph 25).

The Judge’s conclusions are then expressed as follows:

The decision was upheld by Deputy UTJ Harris on 6 August 2015. The critical findings of the Upper Tribunal were as follows:

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.

Ms Smyth emphasises, in similar terms to the submissions in the Shah case, that both the F-tT and the UT misdirected themselves. The F-tT concluded there would be compulsion on the child in this case to leave the United Kingdom because the alternative would be for his mother “to quit her job and go on benefits”. That was a misdirection. The evidence actually meant that Mrs Bourouisa would be left with a choice, albeit a hard choice. She was perfectly capable of caring for her son and continuing to live with him in the United Kingdom, if her husband was to leave. Ms Smyth submitted that “the real basis” for Mr Bourouisa’s appeal through the tribunal system was to maintain the family unit, and here she relies particularly on a passage from Mrs Bourouisa’s witness statement which was before the F-tT and was explicitly accepted:

Mr Bourouisa appeared before us unrepresented. He made a moving plea to us as to the strength and closeness of his family life, his love for his son and his close engagement with the child, who has a number of problems. He was not in a position to address the legal issues.

Here too, I give my conclusions below.

The primary findings of fact in this case were set down in the decision of F-tT Judge Miles, promulgated on 24 June 2015. The Appellant Patel 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, the Appellant sought leave to remain on the basis of his family and private life, and on 29 August that application was refused. On 4 December 2014, the Appellant 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 Secretary of State refused that application on 28 January 2015 and the matter was then appealed as I have said.

Judge Miles noted the Appellant’s evidence that since his arrival in the United Kingdom he had always lived with his parents and:

Before the F-tT, the Secretary of State accepted the Appellant was caring for his father, although did not accept that there were no other alternative care provisions available. On that basis, the F-tT concluded that the Appellant was indeed his father’s primary carer for the purposes of Regulation 15A(4)(B) of the Regulations. Judge Miles went on to say:

The Appellant submitted to the Tribunal that there were no other relatives or guardians in the UK to care for the Appellant’s father, and that “there are no alternative care provisions available in the United Kingdom”.

The Respondent rejected those assertions and pointed out that as a British citizen the Appellant’s father was entitled to state support. Preference and convenience were not a sufficient basis to demonstrate that his return to India would compel his parents to leave.

Judge Miles accepted from the Appellant that the care provided to his father from Social Services would “not be at the same level as that provided by the Appellant”. He also accepted that there was no existing family home in India, nor were there siblings or other immediate family in India able to offer accommodation and support. The Appellant’s case was that if he had to return to India, his father “would feel compelled to join him”. There was no evidence before the tribunal as to what level of medical care, if any, would be available in India, nor any evidence as to the timescale over which it might be provided. The Judge went on as follows:

The Appellant’s case came before the UT in December 2015 and UTJ Hanson promulgated his decision on 23 February 2016. UTJ Hanson set out a reasonably full analysis of the decision in Zambrano and other authority, including the following helpful analysis:

UTJ Hanson accepted that the Zambrano principle is not restricted to children (paragraph 22): the question is whether the relevant individual satisfies the criteria (a) as primary carer of the British citizen, (b) who resides in the United Kingdom, and (c) where the British citizen would be unable to continue to reside in the EEA if the carer were required to leave.

The judgment goes on to set out a clear and full analysis of the evidence that was before the F-tT and to look closely at the medical evidence which was before the judge below. Judge Hanson noted in particular the following passage from the care report:

Judge Hanson then went on to reject the submission from Mr Pennington-Benton, made at the first hearing, that the judge “should have applied a subjective test”, as not being in accordance with the case law or the Zambrano principle (paragraph 30).

Judge Hanson concluded that the F-tT had applied the correct legal test, had given the evidence “the required degree of anxious scrutiny” and given adequate reasons. Judge Hanson accepted that the F-tT had not been referred explicitly to the Zambrano principle, observed that it cannot be a legal error for the F-tT to fail to consider an authority that had not been referred to, but concluded that the F-tT had adopted the correct approach to the law in any event, based on the reading of the relevant regulation. Judge Hanson then concluded that the finding below that the case was not exceptional and that there was no compulsion for the Appellant’s parents to leave the United Kingdom has not been shown to be infected by any arguable legal error. He therefore dismissed the appeal.

Ground 1 for Mr Patel is a broad challenge to the application of the Zambrano principle to this case of a dependent adult. In his written submissions Mr Pennington-Benton argues that, as he puts it, that “the test of ‘unable’ sets the bar too high”. Given the quality and extent of the care provided by the Appellant to his father “the only alternative for the father would be to go to a residential care home”. Making the analogy with cared-for children, the Appellant suggests that it is always “theoretically possible for children to remain” if primary carers are removed, by being put into care or being fostered out. This cannot be the intention of Parliament and is not the consequence of the Zambrano principle. The test must be more nuanced when considering elderly and infirm parents. Accepting that there is State responsibility to meet the needs, medical and/or social, of the frail elderly, Mr Pennington-Benton suggests the approach adopted below would mean in effect that no derivative residence claim could succeed in relation to a cared-for elderly adult. Hence, he argues that the legal approach taken below was in error.

In oral submissions to us, Mr Roe QC for this Appellant argued that the decision in Chavez-Vilchez supported the arguments previously made for the Appellant, and meant that the approach must be more nuanced than hitherto. The fact that the Zambrano principle had in effect been enshrined by Parliament in regulation meant that, whilst the legal principles developed by Strasbourg applied consistently mutatis mutandis to adult carer cases, this did not mean that the position of children and cared for adult dependants were in fact identical. Mr Roe asks the rhetorical questions: “would it not always be the case that the cared for person could be placed in a home or hospitalised? Can Parliament have intended for this to be the answer in all such cases?”

Mr Roe focuses on the decision in Ayinde and Thinjom, upon which UTJ Hanson relied in his judgment. Quoting from the principles set out in the headnote to that case, Mr Roe submits that the approach identified there gives a narrow and literalist approach to the test of “unable” in the Regulation, which cannot reflect the intention of Parliament when applying the Zambrano principle to the position of cared-for adults. Particularly in the light of Chavez-Vilchez, the approach should be more nuanced and should involve consideration of a range of factors, “including the subjective bonds and feelings of dependency between the cared for person and the carer”. Even the case of Chavez-Vilchez, says Mr Roe, does not delineate “what is the nature and degree of compulsion, as a minimum, that must be evidenced so as to constitute impermissible interference with … the right to reside”. Certainly in the context of the children, compulsion cannot be negatived by the child being put into care or adopted (see Harrison v SSHD). Citing a series of European authorities culminating in Zambrano and in Rottmann v Freistaat Bayern (Case C-135/08) [2010] QB 761, the Appellant:

Mr Roe supplements this submission by arguing that, as part of a more nuanced or broader approach to the problem, the Court must take into account the right to respect for family life as stated in Article 7 of the Charter, and indeed Article 25 of the Charter enshrining a right to respect and dignity for the elderly.

This Appellant accepts that in “broad terms” the question to be decided is whether the British citizen would be compelled to leave the UK. The Appellant, however, submits that when that assessment is undertaken, all relevant circumstances must be considered, including “the subjective feelings of motivations of the parties. The focus should be on the nature and degree of dependencies”. In the instant case the assessment should have been more nuanced and multi-factorial when assessing whether the parents would be “compelled to leave”.

The second ground of appeal on behalf of this Appellant is a challenge to the finding by the F-tT that in point of fact this Appellant’s parents would not leave, given the disparity in medical and care facilities available between India and the United Kingdom. The Appellant accepts this is a challenge to a finding of fact, but submits that a review in this appeal may properly comprise a review of fact in a case involving a “multi-factorial decision … dependent on inferences and analysis of documentary material” (see the judgment of May LJ in Dupont de Nemours (EI) & Co v ST Dupont (Note) [2006] 1 WLR 2793). The Appellant submits that had the approach of the F-tT reflected the more nuanced test he advances, the outcome of the decision here would have been different.

In responding to this appeal, Mr Blundell for the Secretary of State began by emphasising that the relevant regulation was drafted to embody the principle in Zambrano, not to extend it. He emphasises the words of the CJEU in Dereci and others at paragraph 68 that “the mere fact that it might appear desirable to a national of a member state for economic reasons or in order to keep the family together in the territory of the Union” is not sufficient “in itself” to make out a claim for derivative rights under the regulation. Mr Blundell also emphasises the rigour of the approach approved by this Court in Harrison and in particular emphasises the passage from the judgment of Elias LJ quoted in paragraph 16 above. On this basis, Mr Blundell submits that Article 7 of the Charter is not engaged.

Mr Blundell relies upon the application of the principle in Harrison in Hines v Lambeth LBC [2014] EWCA Civ 660. The non-resident mother in that case claimed that her British child would be compelled to leave the EU if her right to reside were not recognised. This Court rejected the argument and applied Harrison. In the course of his judgment, Vos LJ (as he then was) concluded that it could not be compulsion where a child, if he did leave, would still have the care of one of his two previous joint carers.

Mr Blundell relies on the consistent application of the Zambrano principle in such cases as FZ (China) v SSHD [2015] EWCA Civ 550 and Sanneh v Secretary of State for Work and Pensions [2016] QB 445. Mr Blundell emphasises the high threshold for engagement of the Zambrano principle, relying, inter alia, on the statement of the CJEU in Dereci, paragraph 67, that a right of residence pursuant to Article 20 is “exceptional”. The mere fact that it might appear desirable for economic reasons or to keep a family together for the grant of such a derivative right of residence does not amount to compulsion (Dereci, paragraph 68). Such a formulation of the right as meaning that it arises only where the EU citizen will be “forced to leave” does not put the matter too high, since that was precisely the phrase used by the Court of Appeal in Harrison at paragraphs 19 and 63.

Mr Blundell also distinguishes between the position of a dependent child and that of elderly British parents cared for by an adult third country national. The ordinary position of an adult child with parents who are not particularly dependent “would not justify a finding of Article 8 family life” (see Singh v SSHD [2015] EWCA Civ 630, Sir Stanley Burnton at paragraph 24). Even if there is a degree of dependency – “something more” than ordinary family life – that will, or will not, give rise to a claim under Article 8, because departure would amount to a disproportionate interference with Article 8. If there is no such disproportionate interference, then the individual can lawfully be required to leave. The nature of the relationship and the nature of dependency is, says Mr Blundell, rather obviously different when considering children and even clearly dependent elderly adults.

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.

Mr Blundell shortly rejects the submissions of the Appellant on Ground 2. This is nothing more than “a thinly veiled attack” on the factual finding, revealing no error of law. Mr Blundell says it is plain from the content of the judgment that Judge Miles had properly considered and gave proper regard to the report of the occupational therapist, accepted that the level of care provided by Social Services would not be at the same level as that provided by the Appellant, and reached a perfectly rational assessment of the impact and outcome on the parents’ decision of the nature and degree of their medical problems.

In considering the impact of the decision in Chavez-Vilchez, Mr Blundell emphasised that the Court recognised the treaty provisions on citizenship do not confer autonomous rights on third country nationals, see paragraph 62. Mr Blundell emphasises that the Chavez-Vilchez decision is about the derivative rights of children, does not purport to deal with the position of adult carers, and in any event in no way represents a departure from the earlier case law on Article 20 and the Zambrano principle. Mr Blundell argues that the Chavez-Vilchez decision is not directed to the situation arising in this appeal and in any event does not depart in any way from the earlier case law.

Mr Blundell also emphasises that children and adults hold at least to some degree a different legal position in EU law, since children benefit from the application of the “best interests” principle in Article 24(2) of the Charter, in situations where EU law is engaged: see Chavez-Vilchez at paragraph 70. Custody and dependence, combined with the best interests principle, create a different legal order in relation to children where derivative residence claims are made. Hence the primary position adopted by the Secretary of State in this appeal is that Chavez-Vilchez is irrelevant. The secondary position advanced is that, even if Chavez-Vilchez could be applied by way of analogy, it would not assist this Appellant. Custody is completely irrelevant to this case. In relation to the notion of dependence, the only implication of the decision is that a Court must take account of all the relevant circumstances when deciding the question whether a relevant EU citizen will be compelled to leave. That is already a requirement of domestic public law.

In my judgment, the decision in Chavez-Vilchez represents 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 is no alteration in the test of compulsion.

The case must also be kept in context: there was no question in these cases that both parents would choose to remain together abroad. That was not the situation the CJEU was addressing.

It follows in my view that Chavez-Vilchez does not represent any kind of sea-change to the fundamental approach to be taken. It does not mean that English reported cases implementing Zambrano but pre-dating Chavez-Vilchez (such as Harrison, and Sanneh) hold diminished authority.

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.

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.

I would allow the Secretary of State’s appeals in Shah and Bourouisa. In each case, it seems to me, 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. In my view, 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 quoted above.

I would wish to emphasise 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.

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.

I turn to the case of Patel. Here, it seems to me that a number of the arguments advanced by the Appellant, with great respect to Mr Roe and Mr Pennington-Benton, were misconceived. I agree that the approach to such a case must be “nuanced”, if by that it is meant that there must be a full enquiry into the facts, and full consideration of the detail. But if the implication is that the test for a dependent adult must be weaker than for a dependent child, I reject that. It must be obvious, as Mr Blundell submits, that the combination of the legal enshrinement of the best interests of the child and the legal, as well as moral, obligation of parents to care for their children, mean that such a distinction cannot be right.

I recognise the force of the submission that, if State provision in terms of medical or social services care is both a right of the dependent adult and in fact available, then the class of dependent adults who can demonstrate “compulsion” to follow a non-British carer abroad may be limited. I also recognise that devotion to and care of elderly, frail parents is to be applauded and praised, not condemned. It is clear that Mr Patel is to be praised for his admirable care of his parents. But I do not see any error in the legal approach taken by either the F-tT or the UT in this case. The question remains compulsion.

And it further seems to me that the evidence in this 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, despite the findings below, but that really represented their cultural and individual commitment to each other. That, again, is choice not compulsion.

Objectively, the choice was, and presumably still is, a difficult choice. The evidence was there was no house existing and no extended family in India. Therefore that would mean, presumably, selling up in Britain and a transfer of resources to India. Part of the Appellant’s case was that medical facilities would be more limited in India, as I have indicated above. However, if remaining in England, the parents will be faced with medical and social care support that is likely to be lesser in quality (and certainly more impersonal) than the care currently provided by their son. UTJ Hanson considered, on the evidence he heard, it was inevitable the parents would in fact remain. But even if that were wrong, this situation can in no way be regarded as one of compulsion to leave.

During the hearing, we asked the Secretary of State to consider in what circumstances compulsion might arise in respect of adult dependents of those without residence: if there were none, might the regulation so interpreted be a dead letter, forcing a different interpretation to preclude redundancy? Mr Blundell’s response accepts that this category of cases might be very narrow. However, he did proffer examples. Where the family share a rare blood group, and blood transfusion or bone marrow transplants might be required, it might be arguable that the carer should remain. He also instanced a British adult citizen with severe autism, dependent for all his care on a third country national relative, where it would be intolerable for the identity of the carer to change. It is clear Mr Blundell was intending to give examples rather than an exhaustive survey. For myself, I would instance significant psychological dependence derived from any well-documented and recognised psychological condition, as a possible example. There may be more. The point is that the category exists, and there can be no argument that the regulation must have an expanded reading in order to avoid redundancy.

For those reasons, I would reject Ground 1 in the case of Patel.

As to Ground 2, it seems to me that the conclusion of UTJ Hanson that the Appellant’s parents would remain may have been somewhat over-definite. It may have underestimated their strength of feeling about being cared for by their son, as opposed to being cared for by people who are as yet strangers to them. However, if there was an error, it was not material to his conclusions in the case. At the very least, the case represented a very difficult choice for the Appellant’s parents. They were not obliged to leave in any sense. Hence, I would dismiss the appeal in Patel.

I agree.

I also agree.