Patel v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLady Arden,Lady Hale,Lord Carnwath,Lord Briggs,Lord Sales
Judgment Date16 December 2019
Neutral Citation[2019] UKSC 59
CourtSupreme Court
Date16 December 2019
Patel
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
Secretary of State for the Home Department
(Respondent)
and
Shah
(Appellant)

[2019] UKSC 59

before

Lady Hale, President

Lord Carnwath

Lord Briggs

Lady Arden

Lord Sales

Supreme Court

Michaelmas Term

On appeal from: [2017] EWCA Civ 2028

Appellant (Nilay Patel)

Thomas Roe QC

Rowan Pennington-Benton

Ahmad Badar

(Instructed by Connaught Law Limited)

Appellant (Adil Shah)

Zane Malik

Darryl Balroop

(Instructed by Lincolns Solicitors)

Respondent

David Blundell

Julia Smyth

(Instructed by The Government Legal Department)

1 st Intervener (The AIRE Centre)

Richard Drabble QC

Charles Banner QC

Bojana Asanovic

(Instructed by Freshfields Bruckhaus Deringer LLP)

2 nd Intervener (Liberty – written submissions only)

Caoilfhionn Gallagher QC

Antonia Benfield

Zoe Harper

(Instructed by Liberty)

Heard on 7 May 2019

Lady Arden

( with whom Lady Hale, Lord Carnwath, Lord Briggs and Lord Sales agree)

1

These two appeals were heard together by the Court of Appeal and raise common issues as to the scope of the principle in Ruiz Zambrano v Office national de l'emploi (Case C-34/09) [2012] QB 265 (“ Zambrano”). In Zambrano, the Court of Justice of the European Union (“the CJEU”) held that a third-country (ie non-member state) national parent (“TCN” parent), of a Union citizen child resident in Union territory, was entitled to a right of residence to avoid the child being deprived of the genuine enjoyment of the substance of their Union citizenship rights on removal of the TCN parent. The principle extends to dependents who are not children, and has been applied even where the Union citizen has not exercised their right of free movement. The right of residence is a “derivative right”, that is, one derived from the dependent Union citizen. A key to this derivative right is the deprivation of the benefits of the Union citizenship as a result of the Union citizen being compelled, by the TCN's departure, to leave Union territory. This case is about the nature or intensity of that compulsion.

2

The derivative residence right was implemented in UK law by regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006. At the material time, this provided a TCN, “P”, with a derivative right to reside where:

“(a) P is the primary carer of a British Citizen (‘the relevant British citizen’);

(b) the relevant British citizen is residing in the United Kingdom; and

(c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.”

3

So the relevant wording of the domestic legislation is “unable to reside”. These words must be interpreted so far as possible compatibly with EU law. This depends upon the jurisprudence of the CJEU.

4

In the first appeal, the appellant, Mr Nilay Patel, for whom Mr Thomas Roe QC appears, is a TCN with no right to remain in the UK. He has Indian nationality. He cares for his parents, both of whom are British citizens and both of whom are ill. His father suffers from end-stage kidney disease and needs dialysis for some eight hours per day. Mr Patel, though not medically qualified, is able through training and experience to administer this. His mother is also ill and immobile. Mr Patel's case is that that his parents are dependent on him. The First-tier Tribunal (“FTT”) accepted that they were dependent on him. However, it could not be said with confidence that the medication required for the dialysis which Mr Patel performed for his father was available in India. The FTT found that in those circumstances his father would not in fact return with his son but would remain in the UK and be provided with a social services care package and appropriate medical treatment, although this might not give him the same quality of life as he would have if Mr Patel continued to provide him with dialysis and other primary care in his own home. Mr Patel's subsequent appeals to the Upper Tribunal (“UT”) and the Court of Appeal were similarly unsuccessful. Mr Patel had sought to establish a right to remain under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) but his claim was dismissed.

5

On this appeal, Mr Roe submits that, in determining whether the parents would be compelled to leave, the tribunals and Court of Appeal approached the issue of compulsion with excessive rigidity and should have taken into account that Mr Patel's father could not be treated in the UK with the same level of care if Mr Patel were no longer here.

6

In the second appeal, Mr Shah, a Pakistani national, is the primary carer of his infant son, who is a British citizen. His wife also has British nationality. Mr and Mrs Shah and their son all live together. Mrs Shah is in full-time work outside the home to earn an income for the family. While she is at work, the son remains with Mr Shah, who has no right to live or work in the UK. If Mr Shah were to return to Pakistan, Mrs Shah, on the findings of the FTT, would not remain in the UK but would accompany her husband to Pakistan, and the child would have no option but to go too. In those circumstances the FTT and UT in Mr Shah's case found that the child would be compelled to leave Union territory and that Mr Shah was, therefore, entitled to a derivative residence card. The Court of Appeal came to a different conclusion. They considered that Mrs Shah would be able to look after their son in the UK and so the requirement for compulsion to leave the UK was not satisfied.

Zambrano jurisprudence
7

The CJEU has effectively adopted an incremental approach to the development of the derived right of residence in a member state that may be enjoyed by a TCN, taking one step at a time in a number of cases which it has decided. It has consolidated much of that jurisprudence in the recent case of KA v Belgium (Case C-82/16) [2018] 3 CMLR 28, which was decided after the Court of Appeal gave its judgment. This court can therefore go to that case, although the facts are not relevant as they concern the compatibility with EU law of entry bans on TCN carers of Union citizen children. The case considered the application of article 20 of the Treaty on the Functioning of the European Union (the “TFEU”), and articles 7 and 24 of the Charter of Fundamental Rights of the European Union (“the Charter”), and so it is convenient to set those provisions out first.

8

Article 20 TFEU provides:

Article 20 (ex article 17 TEC)

1. Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

a) the right to move and reside freely within the territory of the member states; …”

9

The right to EU citizenship is, therefore, a Treaty right. It lies at the heart of the European legal architecture. In UK law, prominence is not generally given to the distinction between citizenship of, and nationality within, the UK. The concept of EU citizenship is perhaps more easily understood in the context of countries where the borders have altered or been created in recent times, and the population includes peoples of different nationalities, such as Romania. The purport of the TFEU is that a person may have both EU citizenship and member state nationality. EU citizenship is a Treaty right and it is to be anticipated that it may be treated as a dynamic concept.

10

This court has held that article 20 does not confer any rights on a TCN: R (Agyarko) v Secretary of State for the Home Department [2017] 1 WLR 823, para 62.

11

Articles 7 and 24 of the Charter provide:

Article 7

Respect for private and family life

Everyone has the right to respect for his or her private and family life, home and communications.

Article 24

The rights of the child

1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.”

12

Article 7 reflects article 8 of the Convention. Article 24 does not, however, have an equivalent standalone right in the Convention although the best interests of the child may require to be considered in appropriate cases under specific articles, such as article 8. Needless to say, adults cannot rely on article 24. There is a further right in article 25 of the Charter. This sets out the rights of the elderly and provides that:

“The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.”

13

Passing to the CJEU's analysis in KA [2018] 3 CMLR 28, it is also convenient to set out its own summary of the relevant holdings in para 76 of its judgment, which was as follows:

“It follows from paras 64 to 75 of this judgment that article 20 TFEU must be interpreted as meaning that:

– where the Union citizen is an adult, a relationship of dependency, capable of justifying the grant to the third-country national concerned of a derived right of residence under article 20 TFEU, is conceivable only in exceptional cases, where, in the light of all the relevant circumstances, any form of separation of the individual concerned from the member of his family on whom he is dependent is not possible;

– where the Union citizen is a minor, the assessment of the existence of such a relationship of dependency...

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