Mr Alban Velaj v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Andrews,Lady Justice Whipple,Lady Justice King |
| Judgment Date | 31 May 2022 |
| Neutral Citation | [2022] EWCA Civ 767 |
| Docket Number | Case No: CA-2021-000066 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 767
Lady Justice King
Lady Justice Andrews
and
Lady Justice Whipple
Case No: CA-2021-000066
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE RINTOUL AND
UPPER TRIBUNAL JUDGE BLUNDELL
HU/12362/2017
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Cox and Pierre Georget (instructed by Malik & Malik Solicitors) for the Appellant
Colin Thomann (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 17 May 2022
Approved Judgment This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 2pm on Tuesday 31st May 2022.
INTRODUCTION
This appeal concerns the correct interpretation of Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) which defines the circumstances in which a third country national who is the primary carer of a British Citizen (usually, though not invariably, a child) has a derivative right to reside in the UK. The 2016 Regulations ceased to have effect, save for certain transitional purposes, on 31 December 2020. Despite the fact that the 2016 Regulations and the principles of EU law reflected in them are no longer applicable, for convenience I will use the present tense in my analysis of them.
Regulation 16 is entitled “Derivative right to reside.” The criteria set out in paragraphs (2) to (6) of that Regulation reflect situations that were established by different lines of EU jurisprudence to give rise to rights of residence, in order to give effect to the fundamental freedoms conferred on EU citizens by the Treaty on Functioning of the European Union (“TFEU”). Whilst those rights may also be invoked by citizens of the European Economic Area (“EEA”), for simplicity I will refer only to EU citizenship.
Paragraph (5) is concerned with the rights established by the well-known decision of the Grand Chamber of the Court of Justice of the European Union (“CJEU”) in 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”). For convenience, I will adopt the expressions “ Zambrano rights” and “ Zambrano carer” to denote, respectively, the derivative rights established under the Zambrano jurisprudence, and a primary carer who is entitled to such rights under EU law.
Zambrano concerned a family living in Belgium. The parents were third country nationals (of Colombia) who had unsuccessfully claimed asylum in Belgium, but, because of a non-refoulement order, could not be forcibly repatriated. Two of their children were Belgian citizens, and therefore citizens of the EU by virtue of Art 20 of the TFEU. The father had worked for a period but then lost his job. He was denied unemployment benefits on the basis that he had no work permit, and therefore no right to work in Belgium at the material time. He challenged the refusal before an employment tribunal, which sought a preliminary ruling from the CJEU on the question whether the rights of the EU citizen children under Art 20 and Art 21 TFEU conferred a right of residence on a third country national parent upon whom they were dependent, and thus exempted him from having to obtain a work permit.
The CJEU answered that question in the affirmative. It 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 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, in this case, 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.
In Patel v Secretary of State for the Home Department [2020] 1 WLR 228 Lady Arden JSC (with whom all the other members of the Supreme Court agreed) succinctly 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.”
So far as is material, Regulation 16 provides that:
(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.
(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.”
Thus if, as in the present case, the person claiming a right of residence under Regulation 16(5) is a primary carer sharing his caring responsibilities with another primary carer, the condition in Regulation 16(5)(c) that must be fulfilled is that:
“BC would be unable to reside in the United Kingdom or in another EEA State if both primary carers left the United Kingdom for an indefinite period.” [Emphasis added.]
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”).
Finally, Regulation 16(12) provides that a derivative right to reside will not arise where (broadly speaking) decisions are made to remove or exclude the primary carer on grounds of public policy, public security or public health or misuse of rights. In the present case, the First-tier Tribunal held that the requirements of that provision were not satisfied, and that aspect of its decision is no longer in issue.
The issue which arises on this appeal is 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 Zambrano jurisprudence and the EEA Regulations, including Regulation 16, were recently considered by this Court in R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681, (“ Akinsanya”). The leading judgment in that case (with which Bean LJ and I agreed) was given by Underhill LJ. In the present case, Mr Cox, who appeared with Mr Georget on behalf of the appellant, Mr Velaj, relied heavily upon the decision in Akinsanya, which he submitted was determinative of the issue in this appeal. It will therefore be necessary for me to consider Akinsanya in some detail, in order to explain what the case did (and more importantly what it did not) decide.
For the reasons more fully set out below, I am not persuaded that the language of Regulation 16(5)(c) compels the decision-maker to make a purely hypothetical (and counterfactual) assumption.
BACKGROUND
Mr Velaj is a national of Kosovo. He entered the UK in 1998, at the age of 21. His asylum claim was refused, but he was granted exceptional leave to remain. His wife and children...
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Upper Tribunal (Immigration and asylum chamber), 2023-05-30, [2023] UKUT 00162 (IAC) (Osunneye (Zambrano, transitional appeal rights))
...Akinsanya is of no relevance. We accept that the Court of Appeal’s judgment in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (“Velaj”) might have some bearing on this appeal but not for the reasons that the Respondent might consider it did. Velaj was concerned with ......
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Upper Tribunal (Immigration and asylum chamber), 2023-05-30, EA/05108/2020
...Akinsanya is of no relevance. We accept that the Court of Appeal’s judgment in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (“Velaj”) might have some bearing on this appeal but not for the reasons that the Respondent might consider it did. Velaj was concerned with ......
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Upper Tribunal (Immigration and asylum chamber), 2022-10-14, EA/04456/2020 & EA/00386/2021
...to him copies of the Shah v Patel decision, as well as copies of the cases of SSHD v RM (Pakistan) [2021] EWCA Civ 1754; Velaj v SSHD [2022] EWCA Civ 767 and Akinsanya v SSHD [2022] EWCA Civ 37. In view of the fact that the appellant was a litigant in person, Ms Cunha agreed that she would ......
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Upper Tribunal (Immigration and asylum chamber), 2023-06-07, UI-2022-005503 & UI-2022-005504
...High Court in R (Akinsanya), the Zambrano right was one of last resort, a concept expanded on by the Court of Appeal in Velaj v SSHD [2022] EWCA Civ 767. That concept was relevant to whether, if the first claimant were required to leave the UK, ‘G’ would be required to leave the UK. The ren......
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Court Of Appeal Considers Zambrano Carers Again
...they will continue to be the subject-matter of court proceedings for some time. In Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767, the Court of Appeal was called to consider the interpretation of Regulation 16(5)(c) of the 2016 Regulations, relating to Zambrano carer......