Lagosbos wrote: ↑Mon Apr 26, 2021 11:52 amDecision and reasons
7. The burden of proof is on the Appellant and the standard of proof is the balance of probabilities.
8. I have considered all of the evidence on file. I have also considered the submissions filed on behalf of the Appellant.
9. I have considered the written submissions made by both parties. The Secretary of State contends that the Aappellant can make an application for leave to remain under Appendix FM. This assertion goes to the issue of compulsion set out in regulation 16 (5) (c) in that the Secretary of State submits that the British citizen child is not compelled to leave the UK as the Aappellant has the option of making an alternative application for leave to remain under the Immigration Rules. It appears not to be in dispute that that Aappellant has never made an application for leave to remain under Appendix FM of the Rules.
10. Although the Respondent relies on the decision of the Court of Appeal in Patel, that decision was appealed to the Supreme Court and it is that decision which I must follow. In Patel the Supreme Court highlighted at paragraph 3 that the relevant wording of the domestic legislation is “unable to reside” (although the Court was considering regulation 15A of the 2006 Regulations the relevant wording is identical to that in reg 16(5)(c) of the 2016 Regulations).
Lady Arden considered the Zambrano jurisprudence and summarized it as follows;
“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, with whom the Union citizen has a relationship of dependency, is removed. As the CJEU held in O v 4 Maahanmuuttovirasto (Joined Cases C-356/11 and C-357/11) [2013] Fam 203, it is the role of the national court to determine whether the removal of the TCN carer would actually cause the Union citizen to leave the Union. In this case, the FTT found against Mr Patel and concluded that his father would not accompany him to India. That means that, unless Chavez-Vilchez adopts a different approach to compulsion, Mr Patel’s appeal must fail. There is no question of his being able to establish any interference with his Convention right to respect for his private and family life as he has failed already in that regard.”
12. She went on to say at paragraphs 25-28:
“25. The final sentence of para 71 of the CJEU’s judgment in Chavez-Vilchez identifies the matters which the national court must take into account when deciding whether the requirement for compulsion is fulfilled. Chavez-Vilchez has to be read in the light of the particular facts before the CJEU, which were of separated parents where the Union citizen parent was not the primary carer and where the national court might well conclude that, having regard to the child’s best interests and the extent of their ties to their mother, the relevant relationship of dependency on the mother was made out. There is no direct analogy with a case, such as the Shah appeal, where the family is living together. In that situation, where the TCN is the primary carer and the parent with whom the child has the relevant relationship of dependency and the Union parent will stay with them so as to keep the family together, it will be in the child’s best interests to remain with both parents. Because Mr Shah was the primary carer, the need for a relationship of dependency with the TCN was fulfilled. Moreover, the quality of that relationship is under the jurisprudence of the CJEU a relevant factor in determining whether the child is compelled to leave the jurisdiction (see Chavez-Vilchez, para 71; KA, para 70).
26. It is argued that the reference to the need to consider the child’s best interests points to a shift in the law, and that the CJEU refined or diminished the requirement that there has to be compulsion to leave the Union. It is said that that diminution would enable consideration to be given to desirability of the family remaining together and to respect for family life, even in the case of adults. In that way, in judging when a person was compelled to leave the Union, regard would be had to a person’s family life and what he would have to do to maintain that family life.
27. I do not consider that this deduction can be made. In Chavez-Vilchez, the CJEU were concerned with the case of a child and it is clear from KA that the case of a child is quite separate from that of an adult and that in the case of an adult it will only be in “exceptional circumstances” that a TCN will have a derivative right of residence by reference to a relationship of dependency with an adult Union citizen. An adult Union citizen does not have a right to have his family life taken into account if this would diminish the requirement to show compulsion to leave. It must be recalled that in KA the CJEU effectively reaffirmed the need to show compulsion even after making it clear that the decision in Chavez-Vilchez was good law. Accordingly, Chavez-Vilchez does not relax the level of compulsion required in the case of adults, and thus provides no assistance to Mr Patel, whose appeal must therefore fail.
28. Nor does Chavez-Vilchez in fact have any impact on the Shah appeal. The outcome of that appeal depends on the findings of fact by the FTT and on whether the Court of Appeal correctly identified the relevant findings for the purposes of the test of compulsion. The FTT found as a fact that Mr Shah was the primary carer of his infant son and that he, rather than the mother, had by far the greater role in his son’s life (para 15). Accordingly, the child had the relevant relationship of dependency with Mr Shah. The FTT was entitled to make this finding on the facts, because the mother’s evidence that Mr Shah was the primary carer of her child and that she could not assume full responsibility for him because she worked full time was not challenged. The mother’s evidence that if Mr Shah was not allowed to stay in this country they would move as a family was also unchallenged. The FTT went on to reach what it called “an inescapable conclusion” that the son would have to leave with his parents and that accordingly the requirement for compulsion was met.”
Lady Arden looked at the question to be considered at paragraph 30 where she said:
“30. … The overarching question is whether the son would be compelled to leave by reason of his relationship of dependency with his father. In answering that question, the court is required to take account, “in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium” (Chavez-Vilchez, para 71). The test of compulsion is thus a practical test to be applied to the actual facts and not to a theoretical set of facts. As explained in para 28 of this judgment, on the FTT’s findings, the son would be compelled to leave with his father, who was his primary carer. That was sufficient compulsion for the purposes of the Zambrano test. There is an obvious difference between this situation of compulsion on the child and impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card. It follows that the Court of Appeal was wrong in this case to bring the question of the mother’s choice into the assessment of compulsion.”
13. In this case the Respondent does not dispute that the Appellant is the primary carer for a British citizen child. The Respondent does not dispute in the RFRL that the Appellant’s child would be compelled to leave the UK with him if he is not granted residence.
14. There is no reference in the Patel judgement to the necessity of exhausting domestic applications before acquiring a derivative right of residence. Regulation 16 makes no reference to a further requirement that rights of residence under domestic law or under the European Convention of Human Rights should be exhausted before a derivative right of residence can be acquired.
15. Although the Respondent asserts in the RFRL that the Appellant should make an application under Appendix FM, no guarantee is given that any such application under the rules will be granted.
16. I further take account of the judgement of Elias LJ in Harrison (Jamaica) v Secretary of State for the Home Department [2013] 2 CMLR 23 as approved in R (HC) v Secretary of State for Work and Pensions (AIRE Centre intervening) [2017] UKSC 73, [2017] 3 WLR 1486 that where the non-EU national is refused the right of residence because the EU citizen would not in practice be compelled to leave the country “Article 8 Convention rights may then come into the picture to protect family life as the court recognised in Dereci … but that is an entirely distinct area of protection…” [63]. He made no link between exhaustion of Article 8 rights and an assertion of the EU right of residence. I further note the judgement of Lord Reed in R (Agyarko) v Home Secretary [2017] UKSC 11, [2017] 1 WLR 823 where the said at para 65, in considering the decision of the Grand Chamber in Derici; “As the court made clear, that finding was distinct from the consideration of the case under article 8 of the ECHR or, if applicable, the corresponding provision (article 7) of the Charter of Fundamental Rights.” Further, at paragraph 30 of Patel, Lady Arden distinguished between the issue of compulsion and “impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card”.
17. In my view these decisions make clear that the consideration of the right of derivative residence is distinct from consideration under Article 8. Thus, the Respondent’s view that an application under Article 8 must precede consideration of a derivative right of residence is inconsistent with the view of the CJEU and domestic courts. I agree with the submission made on the Appellant’s behalf in the skeleton argument that the 2016 Regulations and case law must be followed rather than the Home Office policy guidance, where it is inconsistent with the Regulations.
18. In the light of the undisputed facts of this case that the Appellant is the primary carer of a British citizen child, and that child would be unable to reside in the UK or another EEA state if the Appellant were required to leave for an indefinite period, I conclude that the Appellant has established that he has a derivative right of residence in the UK under Regulation 16 and is entitled to a derivative right of residence card in accordance with Regulation 20 of the 2016 Regulations.
NOTICE OF DECISION
I allow the appeal under the Immigration (EEA) Regulations 2016
Anonymity has not been directed
Big congratulations @lagosboy
. Thank you for sharing. Enjoy your freedom. Do you think I can use it in my appeal bundle?
All the very best on the awaited outcomes.
