Ayinde and Thinjom (Carers – R.15A – Zambrano)
| Jurisdiction | UK Non-devolved |
| Judge | Jordan |
| Judgment Date | 30 April 2015 |
| Neutral Citation | [2015] UKUT 560 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 30 April 2015 |
[2015] UKUT 560 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Jordan
For the Secretary of State: Ms J. Smyth, instructed by the Government Legal Department
For the first Respondent: Mr Stephen Knafler QC and Ms G. Mellon instructed by Irving & Co.
For the second Respondent: Mr Stephen Knafler QC and Ms A. Benfield instructed by Camden Community Law Centre
Ayinde and Thinjom (Carers — Reg.15A — Zambrano)
(i) The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano [2011] EUECJ C-34/09 is limited to safeguarding a British citizen's EU rights as defined in Article 20.
(ii) The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union.
(iii) The requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the carer to leave the United Kingdom. A comparison of the British citizen's standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the United Kingdom.
(iv) The Tribunal is required to examine critically a claim that a British citizen will leave the Union if the benefits he currently receives by remaining in the United Kingdom are unlikely to be matched in the country in which he claims he will be forced to settle.
The Secretary of State appeals against two decisions of the First-tier Tribunal. Each appeal raises a similar issue. In each case, the First-tier Tribunal Judge allowed the appeal against the decision of the respondent to refuse to issue them with a derivative residence card. In doing so the Judge purported to apply the principle developed by the Court of Justice of the European Union in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09 as incorporated into domestic United Kingdom law by the insertion of regs. 15A and 18A into the Immigration (European Economic Area) Regulations 2006.
For the sake of continuity Mr Ayinde and Ms Thinjom will be referred to as the appellants as they were in the First-tier Tribunal.
The EEA Regulations as they took effect from 8 November 2012 provided:
“15A. Derivative right of residence
(1) A person (‘P’) who is not an exempt person and who satisfies the criteria in paragraph …(4A)… of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
[Neither Mr Ayinde nor Ms Thinjom is an exempt person.]
(4A) P satisfies the criteria in this paragraph if —
i. he is the primary carer of a British citizen (‘the relevant British citizen’)
ii. the relevant British citizen is residing in the United Kingdom; and
iii. the relevant British citizen would be unable to reside in the UK or in another EEA state if P were required to leave. [ My underlining]
(7) P is to be regarded as a ‘primary carer’ of another person if —
(a) P is a direct relative or a legal guardian of that person; and
(b) P —
(i) is the person who has primary responsibility for that person's care…
(8) P will not be regarded as having responsibility for a person's care for the purpose of paragraph (7) on the sole basis of a financial contribution towards that person's care.”
Regulation 18A of the 2006 EEA Regulations requires the Secretary of State to issue a person with a derivative residence card on application and production of a valid passport and proof that the applicant has a derivative right of residence under reg. 15A of the 2006 Regulations.
The European Operational Policy Team provided guidance to UK Border Agency staff on considering applications from persons claiming a derivative card in a document entitled ‘ Derivative Rights of Residence – Ruiz Zambranocases’ of 12th December 2012 (Issue number: 21/2012). It included the following passage:
Would the British citizen be forced to leave the EEA if the primary carer was forced to leave?
24. Even where there is evidence of primary and shared responsibility, evidence to show why the British citizen would be forced to leave the EEA (for example because they cannot access alternative care in the UK) is still required.
25. If there is another person in the UK who can care for the British citizen, then a derivative residence card must be refused on the basis that such a refusal would not result in the British citizen being forced to leave the EEA.
26. Therefore caseworkers must assess whether there is another direct relative or legal guardian in the UK who can care for the British citizen and, in the case of a child, who has already had established contact. In making this assessment, the burden of proof remains on the applicant and the standard of proof is the balance of probabilities. This means the onus is on the applicant to demonstrate that their removal would force the British citizen to leave the EEA. If there is no information to demonstrate this, then caseworkers may wish to make further enquiries with the applicant as to the status or whereabouts of the other parent in the case of a child, or alternative care provisions in the case of a British citizen adult.
27. Examples of when it may be appropriate to issue a derivative residence card to a primary carer would be where:
there are no other direct relatives or legal guardians to care for the British citizen; or
there is another direct relative or legal guardian in the UK to care for the British citizen but there are reasons why this carer is not suitable; or in the case of an adult British citizen, there are no alternative care provisions available in the UK.
Originally, this appeal contained three linked cases. The third appeal concerned a claimant, a citizen of Algeria, the mother of a British citizen born 4 January 2012, who sought leave to remain in the United Kingdom with her son and the child's father. Significantly, although this was also a claim by a foreign national seeking to remain as the carer of a Union citizen, the application was made pursuant to Article 8 of the ECHR and in pursuit of a protected private and family life and not under the EEA Regulations. It was, therefore, of a radically different character from the two appeals now before me. At the outset of these appeals, the Secretary of State offered to make a fresh decision and the parties in the third appeal settled the appeal before me in the form of an order to which I gave my consent.
Neither appellant has a right to remain under the Immigration Rules as they fail to meet the requirements of the Rules for leave to remain in any capacity. Both are the primary carers of Union citizens. In the case of Mr Ayinde as the son of Mrs Animashaun who is a British citizen; in the case of Ms Thinjom, as the wife of Mr Stevens, also a British national. Having rejected the application for a derivative residence card, the Secretary of State informed each claimant that the decision did not require them to leave the United Kingdom and invited each claimant to make a claim under Article 8 with reference to Appendix FM and paragraph 276ADE if they wished to do so. In the case of Ms Thinjom, the grounds of appeal to the Tribunal did not raise an Article 8 claim. In the case of Mr Ayinde, the grounds of appeal to the Tribunal raised a formulaic assertion (amongst others) that the Secretary of State's decision was in breach of Article 8 but there is no suggestion this was pursued before the First-tier Tribunal. The Judge made no mention of a viable Article 8 claim and there is no cross-challenge before the Upper Tribunal that the First-tier Tribunal Judge should have determined such a claim. Hence, neither has an Article 8 claim before the Upper Tribunal.
Mr Knafler asserts that their actions as carers render them able to benefit from the principle in Zambrano which, he submits, enables non-nationals who are the primary carers of dependent British citizens the right to reside and to work on the basis that, without their support and their earnings it must be assumed that the British citizen would ultimately have to leave the EU with their carers. The words in italics are taken from the skeleton argument advanced by both appellants.
Likewise, he submits, the Courts have recognised that the concept of European citizenship entails more then a bare right of residence and have acknowledged that a ‘ serious impairment’ of the EU citizen's standard or quality of life, resulting from the carer having to leave the EU, could in practice compel the EU citizen to follow. The Zambrano threshold is therefore not whether it would be impossible for the citizen to remain in the United Kingdom (because the Union citizen enjoys a right of residence) but rather to extract an underlying principle from Zambrano that, without the care of their primary carer on whom they are dependent, the Union citizen's right of residence would be theoretical and ineffective due to the extent of their dependence on their primary carer. Accordingly, he says, the ‘ genuine’ enjoyment of the right of residence must entail a real and practical right of enjoyment and not one which is merely theoretical or illusionary. If the effect of this is to require the carer to remain, then in light of Zambrano, the carer is entitled to a derivative residence card.
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