Whyworry wrote: ↑Sat Aug 13, 2022 1:20 pm
Nyamebeye wrote: ↑Sat Aug 13, 2022 12:45 pm
You need to pay separate fees for each but ask for the two appeals to be joined/ heard together.
My appeal was done under the EEA Regulations 2016 because it was my derivative application which was refused. I am sorry I don't know much about the cases for appeal for EUSS.
If you take some time to go over the pages here, you will find the post with the page numbers where skeleton argument has been posted.
As you are time restricted, you need to first complete the appeal form choosing the right category for reason to appeal, and pay the fees.Once submitted, your appeal is in.
You then have some time to prepare the bundle to submit nearer to the hearing. The court will give directions.
Thanks a lots for your honest advise I would continue to search for the skeleton argument.
Appeal No: EA/XXXXX/XXXX
IN THE FIRST-TIER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
BETWEEN
Ms XXXXXX XXXXXXXX
(Appellant)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)
SKELETON ARGUMENT OF THE APPELLANT
1. This skeleton argument is in support of this appeal against the decision of the Secretary of State for the Home Department ("the Respondent") dated 26 July XXXX to refuse the Appellant’s application for indefinite leave to remain under appendix EU of the immigration rules.
Accordingly this skeleton argument will refer to Ms XXXXXX XXXXXXX as "the Appellant"
2. Ms XXXXXX XXXXXXX has for many years suffered with stress and anxiety due to Home Office delay and inconsistencies.
The facts
References to the Appellant and Respondent's bundles are in the format [A/1] and [R/l] respectively
3. The appellant is a Nigerian national, but has been in the UK since 201X. She is 3X years old (see A/4), has two children British children of whom, XXXX XXXXXX (aged 3) is a British National (see, A/1 & A/2). She is the primary carer for XXXXXX XXXXXX and she shares equal care responsibility with her partner Mr XXXXXX XXXXX who is now settled in the UK (see, A/5).
4. The appellant’s daughter Ms XXXXXX XXXXXX suffers from XXXXXXX and a life threatening postnatal medical condition called XXXXXXX, which requires her carrying around an XXXXXX - an auto-injectable device that delivers a drug called XXXXXXXX when having medical crisis (see, A/6 & A/8). XXXXXXX requires a constant and adequate parental supervision to prevent her from having a crisis that could be life threating.
5. The appellant first came to the UK on a six-month visitor visa, which expired on 07 February XXXX and on the 21 November XXXX, the claimant duly applied for leave to remain under Appendix FM, on the basis of family/private life 10-year route. On 26 March XXXX, the Secretary of State granted the claimant 30 months' limited leave to remain under Appendix FM until 25 September XXXX, with condition preventing recourse to public funds (see, A/3).
6. To keep her rights beyond the 30 June 2021 deadline for ‘grace period’ EU nationals and their family members who wish remain in the United Kingdom after the EU exit transition period. On 12 May 2021 the appellant applied to the EU Settlement Scheme for limited leave to remain (pre-settled status) under Appendix EU of the Immigration Rules, on the basis that she has been a person with Zambrano right to reside for a period 1year 7months continuous residence (see, R/1).
7. By refusal letter (R/2) dated 26 July XXXX the Respondent unlawfully refused the Appellants' application in breach of paragraph (b) of the consent order agreed on 17 June 2021 in the case of Akinsanya, R (on the Application of) v Secretary of State for the Home Department (2021) EWHC 1535 (Admin) (09 June 2021).
8. The respondent’s reasons for refusing the application are brief and I therefore set them out in full:
“To qualify under the EU Settlement Scheme, you need to meet the
requirements that are set out in Appendix EU to the Immigration Rules.
One of the requirements for qualifying for settled or pre-settled status as a
person with a Zambrano right to reside is that you do not already hold leave to
enter or remain in the UK, unless this was granted under the EU Settlement
Scheme.
Our records show that you currently hold leave to remain in the UK valid until 25
September XXXX. This leave was granted under Family/Private Life route, not under the EU Settlement Scheme. This means you cannot qualify as a person with a Zambrano right to reside.
As your existing leave to enter or remain means your application cannot succeed, we have not considered the rest of your application.
It is considered that the information available does not show that you meet the
eligibility requirements for settled status set out in rule EU11 of Appendix EU to
the Immigration Rules or those for pre-settled status which are set out in rule
EU14 of that Appendix. Therefore, you have been refused settled status and
pre-settled status under rule EU6.”
9. Before turning to the provisions of the Immigration (European Economic Area) Regulations 2016 that are thus incorporated into Annex 1 of Appendix EU, it is perhaps worth noting at this stage that Mostyn J has held the respondent to have erred in law in her formulation of the italicised words at paragraph (b) (see R (on the application of Olorunfunmilayo Olluwaseun Akinsanya) v The Secretary of State for the Home Department [2021] EWCH 1553 (Admin).
(b) is without leave to enter or remain in the UK, unless this was granted under this Appendix.”
The legal framework
10. The operative provision of Appendix EU which is relevant for the purpose of this appeal is paragraph EU 11. This reads, so far as material:
The applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen or their family member (or as a person with a derivative right to reside or a person with a Zambrano right to reside) where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application and in an application made by the required date, one of conditions 1 to 7 is met:
Condition 3 reads:
(vi) is a person who had a derivative or Zambrano right to reside; and
(b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and
(c) Since then no supervening event has occurred in respect of the applicant.
Also, one of the eligibility requirements for settlement status under section EU 11 of Appendix EU of the Immigration Rules is that the applicant is a person “with a Zambrano right to reside” in the United Kingdom, as defined in Annex 1. This includes “a person who has satisfied the Secretary of State … that … they were:
(a) resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations by satisfying: (i) the criterion in paragraph 1(a) of that regulation; and
(ii) the criteria in:
(aa) paragraph (5) of regulation 16 of the EEA Regulations …; and
(b) is without leave to enter or remain in the UK, unless this was granted under this Appendix.”
[Emphasis added]
The Law
The relevant provisions of the 2016 Regulations for the purposes of this appeal are as follows:
“Derivative right to reside
16.—(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.
…
(7) In this regulation –
…………
(c) an “exempt person” is a person—
(i) who has a right to reside under another provision of these Regulations;
(ii) who has the right of abode under section 2 of the 1971 Act;
(iii) to whom section 8 of the 1971 Act, or an order made under subsection (2) of that section applies; or
(iv) who has indefinite leave to enter or remain in the United Kingdom.
(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.”
“Issue of a derivative residence card
20.—(1) The Secretary of State must issue a person with a derivative residence card on application and on production of—
(a) a valid national identity card issued by an EEA State or a valid passport; and
(b) proof that the applicant has a derivative right to reside under regulation 16.
(2) On receipt of an application under paragraph (1) the Secretary of State must issue the applicant with a certificate of application as soon as possible.
(3) A derivative residence card issued under paragraph (1) is valid until—
(a) the date five years from the date of issue; or
(b) any earlier date specified by the Secretary of State when issuing the derivative residence card.
(4) A derivative residence card issued under paragraph (1) must be issued as soon as practicable.
(5) A derivative residence card is—
(a) proof of the holder’s derivative right to reside on the day of issue;
(b) no longer valid if the holder ceases to have a derivative right to reside under regulation 16;
(c) invalid if the holder never had a derivative right to reside under regulation 16.
(6) This regulation is subject to regulations 24 and 25.”
The Zambrano route/Judgements
11. The Court of Justice of the European Union ("CJEU") considered in Ruiz Zambrano v Office national de I 'emploi (C-34 09) 8 March 2011 the effect of EU citizenship as established by Article 20 of the Treaty on the Functioning of the European Union in circumstances, such as these, where non-EEA national parents are the primary carers of EEA national children. From paragraph [42], the CJEU set out that a refusal to grant a right of residence to a third country national with dependent EU citizen minor children would deprive those children of the genuine enjoyment of their right of citizenship. The Court said:
"(42) Article 20 TFEU precludes, national measures which have the effect of deriving citizens of the Union of the genuine enjoyment the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann, paragraph 42).
(43) A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and a refusal to grant such a person a work permit, has such an effect.
(44) It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.
(45) Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
12. I again respectfully adopt the reasoning of Mostyn J in R (on the application of Olorunfunmilayo Oluwaseun Akinsanya) v The Secretary of State for the Home Department (2021) EWHC 1535 (Admin) (09 June 2021) in holding that the judgement in Patel does not support the Secretary of state’s view that it is necessary for an applicant to demonstrate that they do not already have leave to remain outside the scheme and/or that they are without reasonable prospects of acquiring it.
“(24) It is my clear reading of the judgment that a claim for a Zambrano derivative right of residence is not extinguished by the existence of a current limited right to remain and work awarded under national law. By contrast, I accept the implication in the judgment that if a person had been granted under national law indefinite leave to remain (with recourse to public funds) then that would, at any rate in theory, be a knock-out blow to a claim for a Zambrano derivative right of residence. This is because the rights claimed would be congruent with the rights already granted. I say "at any rate in theory" because it would be completely pointless to make a Zambrano claim in such circumstances.
(36) I disagree that the only consideration is whether, absent the grant of a Zambrano right, the applicant would be compelled to leave. I have given my reasons for that conclusion above. I disagree that the source of the alternative right is not material. On the contrary, I think that it is critically material and that accordingly the CJEU was very careful to confine the alternative residence rights only to those arising under secondary EU law. Had the court intended a national law granting a limited residence right to be a Zambrano extinguishing factor, then it would no doubt have said so. But it did not.
(37) In my judgment a proper analysis of the EU cases clearly demonstrates that the court did not consider a limited leave to remain under national law to be a Zambrano extinguishing factor. Similarly, the domestic cases do not, when properly analysed, support the general extinguishment theory advanced on behalf of the Secretary of State.
(38) The issue in Sanneh v Secretary of State for Work and Pensions [2016] QB 455 was whether the claimants in that case, all of whom had Zambrano rights of residence, were caught by statutory instruments which had been passed disqualifying Zambrano residents from accessing social security benefits after a specified date. This required a finding to be made as to when the Zambrano right of residence arose. The issue in that case therefore is not the same as the question I have to decide. However, it is clear from the judgment of Arden LJ at [61] that she accepted that a right to reside deriving from a limited leave to remain, would coexist with a right to reside deriving from Zambrano, and that therefore, inferentially, the former did not extinguish the latter.
(41) These aspects of the residence right afforded to a Zambrano carer far exceed the entitlements granted to someone with limited leave to remain. Therefore, it is a fallacy to suggest that the grant of limited leave to remain has the effect of extinguishing a claim to Zambrano rights. I would not go so far as Elias LJ to describe the argument as incoherent, but it is certainly illogical.
(51) My conclusion is that nothing decided in the CJEU or domestically since the decision in Zambrano supports the theory that the existence of a concurrent limited leave to remain of itself automatically extinguishes a claim for Zambrano residence. On the contrary, it is clear to me from the facts of Zambrano itself that the CJEU tacitly acknowledged that a limited national leave to remain, and a wider Zambrano right to remain, in many cases can and will coexist.
13. The reasoning of the Respondent's decision letter is so bare that it requires some extrapolation.
In Patel Irwin LJ said at [76] the following in respect of non-British nationals who marry British nationals and have children: 'Quite a number "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) the British Nationality Act1981 and s.2 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.
14. SSHD refuse a majority of applications by Zambrano carers for Derivative residence card under the Reg 16 of the Immigration EEA Regulations 2016. A person who fulfils the requirements of Reg 16 of the Immigration EEA Regulations 2016 enjoys a derivative right of residence, even if an appellant has not yet made an initial (or renewed) application for LTR under Appendix FM (or otherwise pursuant to Art 8 ECHR) on the basis of the relationship with the British citizen child. SSHD updated their Derivative Residence Card Guidance to mirror the flawed and outdated legal position of Court of Appeal in Patel v SSHD [2017] EWCA Civ 2028 (13 December 2017), notwithstanding Supreme Court in Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019). The guidance continues to define a derivative right to reside as a right of last resort. Supreme Court overturned the Court of Appeal’s ruling, and thus invalidated the SSHD’s position. The test developed by Supreme Court asks what would happen if Zambrano carers were compelled to leave the EU, rather than whether they would be so compelled. Supreme Court indirectly protects the Third Country National’s right to reside by explicitly safeguarding the Union citizen’s Art. 20 TFEU rights against interference: "Any rights conferred on third-country nationals are not autonomous rights of those nationals but rights derived from those enjoyed by a Union citizen. The purpose and justification of those derived rights are based on the fact that a refusal to allow them would be such as to interfere, in particular, with a Union citizen’s freedom of movement (Chavez-Vilchez, para 62 and the case law cited)." Furthermore, “Article 20 TFEU precludes national measures, including decisions...which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status.” The SSHD’s legal position is untenable. By breaching Art. 20 TFEU, SSHD breaches the appellant’s rights under the EU Treaties, in respect of residence in the United Kingdom.
15. Amendments to the Immigration (European Economic Area) Regulations 2006 ("the Regulations") put the decision in Zambrano on a legislative footing in domestic law. Section ISA, 'Derived rights of residence' of the Regulations provides:
(1) A person (‘P) who is not [an exempt person] and who satisfies that criteria in paragraph (2), (3), [(4A)] or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
(4A) P satisfies the criteria in this paragraph if-
(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.
16. In considering the scope of the Zambrano route, the CJEU and domestic courts have stressed a distinction between "choice" and "compulsion". It is not sufficient that if an appellant were refused a right of residence the EU citizen would choose to leave the territory of the EU; it is required that they would be compelled to leave the EU if the non-EU citizen so left. For example, in Dereci and Others v Bundesministeriumfiir Inneres (C-256 Il) 15 November 2011 the CJEU held at [67]: The mere fact that it might appear desirable to a national of a Member State for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave the Union, if such a right is not granted.
17. Reliance by the Secretary of State on her Policy Guidance could not stand having regard to the principles arising in KA v Belgium (Case C-82/16) [2018] 3 CMLR 28, on the correct interpretation of Article 20 of TFEU.
18. On 30 January 2020 and having heard a number of test cases, Judge Neville of the First-tier Tribunal (IAC) at Taylor House ruled that a person meeting the requirements Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) has a derivative right of residence notwithstanding that he or she has not yet made an application under the Immigration Rules and pursuant to Article 8 ECHR. The upshot is that the novel concept set out in Home Office policy that a Zambrano carer must first make an unsuccessful fee-paid human rights application before an application under the 2016 Regulations can be submitted is unlawful.
Article 20 of TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen. This Ruling was made by Judge Neville after the Supreme Court has ruled on 16 December 2019 Patel vs SSHD which now becomes a precedent and make the 2017 Patel vs SSHD obsolete.
Furthermore, Judge Neville went on to make these proceedings; Where the Secretary of State accepts:
1. That the appellant is the primary carer for a British citizen child; and
2. That the child would not be able to remain in the United Kingdom or another EEA member state if the appellant were required to leave the United Kingdom for an indefinite period.
It is in breach of the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom for an application for a residence card under Reg. 20 of the 2016 Regulations to be refused because the appellant has not yet made an application for leave to remain under the Immigration Rules (or otherwise pursuant to Article 8 ECHR) on the basis of the relationship with the British citizen child. Further, the Secretary of State also argued that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. She sourced the above principles from Patel. The FTT rejected this contention and held that the Respondent’s interpretation ‘cannot survive the actual legal principles engaged nor, in any event, would her interpretation of the law provide a sound basis for the requirement imposed by the guidance’ [28].
19. In 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 he 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”.
20. The Court of Appeal considered recently derived routes of residence through the Zambrano route in Patel v Secretary of State for the Home Department [2017] EWCA Civ 2028 in light of the decision of the CJEU in Chavez-Vilchez v Raad van Bestuur van de Sociale Verbekeringsbank and others (C-113 15) 10 May 2017. In his consideration of Chavez-Vilchez, Irwin LJ said as follows: '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:
"(68) In that regard, it must be recalled that, in the judgment of 6 December 2012, O and Others (C 356/11 and C 357/11, EU:C
776, paragraphs 51 and 56), the Court held that factors of relevance, for the purposes of determining whether a refusal to grant a right of residence to a third-country national parent of a child who is a Union citizen means that that child is deprived of the genuine enjoyment of the substance of the rights conferred on him by that status, include the question of who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country national parent.
(69) As regards the second factor, the Court has stated that it is the relationship of dependency between the Union citizen who is a minor and the third country national who is refused a right of residence that is liable to jeopardise the effectiveness of Union citizenship, since it is that dependency that would lead to the Union citizen being obliged, in practice, to leave not only the territory of the Member State of which he is a national but also that of the European Union as a whole, as a consequence of such a refusal (see, to that effect, judgments of 8 March 2011, Ruiz Zambrano, C 34/09, EU:C
124, paragraphs 43 and 45; of 15 November 2011, Dereci and Others, C 256/11, EU:C
734, paragraphs 65 to 67; and of 6 December 2012, O and Others, C 356/11 and C 357/11, EU:C
776, paragraph 56).
(70) In this case, in order to assess the risk that a particular child, who is a Union citizen, might be compelled to leave the territory of the European Union and thereby be deprived of the genuine enjoyment of the substance of the rights conferred on him by Article 20 TFEU if the child’s third-country national parent were to be refused a right of residence in the Member State concerned, it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in Article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of that charter.
(71) For the purposes of such an assessment, the fact that the other parent, a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account must be taken, 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.
21. Further, In the Supreme Court judgement, Lady Hale, Lord Carnwath, Lord Briggs, Lady Arden and Lord Sales unanimously allowed Mr Shah’s appeal and dismissed Mr Patel’s appeal. The court said that the right of residence is a “derivative right” which is derived from the dependent EU/UK citizen. The basis of this derivative right turns on the deprivation of the benefits of EU citizenship as a result of him/her being compelled, by the TCN’s departure, to leave EU territory. Giving the sole judgment Lady Arden prefaced the court’s views by noting that the present case concerned “the nature or intensity of that compulsion.”
22. Article 20 TFEU is a Treaty right which establishes EU citizenship. Everyone holding the nationality of a member state is an EU citizen and such citizenship is additional to and does not replace national citizenship. EU citizens enjoy the rights and subject to the duties provided for in the Treaties, they have the right to move and reside freely within the territory of the member states. Explaining that EU citizenship “lies at the heart of the European legal architecture”, Lady Arden explained that UK law does not give too much prominence to distinction between citizenship of, and nationality within, the UK but that under the TFEU people may possess both EU citizenship and member state nationality (a Treaty right which is a dynamic concept). In Agyarko [2017] UKSC 11 (discussed here), the Supreme Court held that article 20 does not confer any rights on a TCN.
The right to family life is enshrined in article 7 of the Charter of Fundamental Rights of the European Union and the rights of the child are enshrined in article 24. Notably, article 7 of the CFR reflects article 8 of the ECHR. Further, under article 25 of the CFR, the EU recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.
23. The CJEU’s judgment in KA v Belgium (C-82/16, EU:C
308), which was delivered after the Court of Appeal’s judgment in Patel, emphasised the importance of the right to EU citizenship and stated that a TCN might acquire a derived right of residence if their removal could deprive an EU citizen of their citizenship rights. In KA, the CJEU drew a distinction between the case of an EU citizen who is an adult and one who is a child.
The entitlement of a TCN to reside in the EU is limited by the requirement that the TCN’s derived right of residence is only provided to ensure the effectiveness of the EU citizen’s rights. In KA (para 51), keeping in mind the approach in Zambrano (paras 43 and 44) and Chavez-Vilchez (para 63), the CJEU judged that in “very specific situations” a TCN may have a right of residence if the EU citizen would otherwise be obliged to exit EU territory and be deprived of the genuine enjoyment of the substance of the rights conferred by EU citizenship. However, the CJEU said that must be a “relationship of dependency” between the EU citizen and the TCN. Moreover, a TCN could have a relationship of dependency with an adult EU citizen capable of justifying a derived right of residence under article 20 TFEU only in “exceptional circumstances” (para 65). Lady Arden discerned that in both Chavez-Vilchez and KA the CJEU relied on Dereci (C-256/11, EU:C
734) as one of the authorities for the requirement of compulsion. Dereci clearly remained unqualified by the decisions in Chavez-Vilchez and KA and it was held in Dereci that in order for a TCN to have a derived right pursuant to article 20 TFEU, the circumstances must be such that if the TCN is removed the EU citizen would in fact depart with them. Her Ladyship also explained that the CFR cannot extend the application of EU law, which imposes limits on the entitlement to derivative residence rights, and she held that:
(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, with whom the Union citizen has a relationship of dependency, is removed. As the CJEU held in O v 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.”
24. In KA the CJEU drew on its earlier decision in Chavez-Vilchez and said that in the case of children, it is first necessary to determine who the primary carer is, and whether there is a relationship of dependency with the TCN or the national parent. Chavez-Vilchez involved several TCN mothers, whose children were Dutch and who claimed a derivative right of residence in the Netherlands. The claims were rejected on the basis that the fathers of the children were also Dutch. Some of the fathers were involved in their child’s upbringing but they lived apart from the child’s mother. They were not the primary carer. The CJEU rejected the view that the mother’s claim for residence was negated by the proposition that the father could in theory become the child’s carer. The national court had to assess whether the child would be compelled to leave the EU. In making that decision, the national court had to take into account all the circumstances, including the best interests of the child.
In Chavez-Vilchez and KA the CJEU identified (para 71 and para 70 respectively) that in arriving at a conclusion on whether the requirement for compulsion is fulfilled, regard must be had, in the best interests of the child concerned, of all the specific circumstances in the case, including the age of the child, the child’s physical and emotional development, the extent of his or her emotional ties both to the EU citizen parent and to the TCN parent, and the full risks which separation from the TCN parent might entail for that child’s equilibrium. The approach in Chavez-Vilchez was fact specific. It concerned separated parents where the EU parent was not the primary carer and the EU citizen child was dependent on the TCN mother. Thus, no direct analogy arose with the Shah case where the family lived together and the TCN father was the primary carer upon whom the child depended. Even so Mr Shah was the primary carer and so the need for a relationship of dependency with the TCN was fulfilled and Chavez-Vilchez held (para 70) that the quality of that relationship is a relevant factor in determining whether the child is compelled to leave the jurisdiction.
25. The Supreme Court did not agree that the reference to the need to consider the child’s best interests pointed to a shift in the law. Lady Arden disagreed that the CJEU had refined or diminished the requirement that there has to be compulsion to leave the EU. Rejecting the idea 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), Lady Arden held that 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.”
26. Thus, her Ladyship rejected the argument that in evaluating when a person was compelled to leave the EU, regard would be had to a person’s family life and what he would have to do to maintain that family life. Chavez-Vilchez is about children. KA clarified that children and adults are treated separately and a TCN will only have a derivative right of residence by reference to a dependant relationship with an adult EU citizen in exceptional circumstances.
Lady Arden added that in fact, Chavez-Vilchez had no impact on Mr Shah’s appeal and his appeal’s outcome turned 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 that Mr Shah was the primary carer of his infant son and that the child had the relevant relationship of dependency with the father (whose evidence was that if he were removed from the UK then the whole family would leave the EU). Furthermore, Mrs Shah’s evidence, that if Mr Shah was not allowed to stay in this country they would relocate as a family, was also unchallenged. The FTT accepted this evidence and held that it was “an inescapable conclusion” that the son would have to leave with his parents. Therefore, the FTT found the requirement of compulsion was met. The Court of Appeal introduced into the question of whether the infant son was compelled to leave the fact that Mrs Shah’s decision to leave was her own choice, and that she, like her husband, would have been “perfectly capable of looking after the child” (para 79). Irwin LJ considered that it followed that there was no question of compulsion.
The Home Office relied on the Court of Appeal’s approach to argue that Mrs Shah simply wished to keep the family together and that reliance on a desire for family reunification was on the CJEU authorities insufficient to justify a derivative right of residence. Lady Arden rejected the submission and held that the overarching question remained whether the son would be compelled to leave because of his relationship of dependency with his father. Her Ladyship added that the court must answer this question in line with para 71 of Chavez-Vilchez and she concluded that:
“(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.”
(31). I consider that the Court of Appeal made an error of law when it treated as determinative what could happen to Mr and Mrs Shah’s son if the father left the UK, rather than what the FTT had found would happen in that event. In other words, it was not open in law to the Court of Appeal to hold that Mr Shah had no derivative right of residence because the mother could remain with the child in the UK even if the father was removed.
Submissions
27. The refusal of the Appellants' application for derivative residence cards is contrary to the Immigration (European Economic Area) Regulations 2016. She plainly satisfies the following criteria under paragraph 5 of section 16 of those Regulations:
(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.
(a). The Appellant is the primary carer of his British citizen child, who is X years old. See, by way of example, (see, A/1 & A/2) & witness statement (see, A/7).
(b). Her British citizen child reside in the UK. See, by way of example, Bank statements, NHS letters & prescriptions (see, A/6, A8 & A9).
(c). Her British citizen child would be "unable to reside in the UK or another EEA State if the appellant were required to leave as leaving the UK will result to her entire family unit leaving with her and this will have adverse effect on his British child health and overall wellbeing - witness statement (see, A/7). Any suggestion that these child would remain in the UK without her parent is fanciful.
28. This respondent view is in turn based upon an obiter dictum in the judgement of Irwin LJ in Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028. However, that decision was appealed to the Supreme Court and it is that decision which I am following. 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).
29. 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 refusal letter that the Appellant’s child would be compelled to leave the UK with her if he is not granted residence.
30. The Court is bound to consider the best interests of the family's children, whether by operation of section 55 of the Borders, Citizenship and Immigration Act 2009 or the citation of Chavez-Vilchez cited above at paragraph [11]. This strongly militates in favour of a grant of indefinite leave to remain to her parent.
31. I would note that the refusal (see paragraph 8 & 12, above) seems to have been based upon the Secretary of State’s view of alternative care as set out in page 23of the relevant Home Office Guidance "EU Settlement Scheme: person with a Zambrano right to reside" (version 4.0 of 27 April 2021) which has been declared legally erroneous in the quashing order by in R (on the application of Olorunfunmilayo Oluwaseun Akinsanya) v The Secretary of State for the Home Department[2021] EWHC 1535 (Admin).
32. It follows that the application of the policy mentioned above in this case is not inconsistent to just Zambrano route and the EEA Regulations 2016, but it is also contrary to the case, which inspired it at the CJEU and domestic courts. I believe the law and regulations should take precedence over a lawfully erroneous policy guidance with inconsistences and anomalies.
33. 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. As a result, the appellant has established that she has a derivative right of residence in the UK under Regulation 16 and she is entitled to a derivative right of residence card in accordance with Regulation 20 of the 2016 Regulations & under rule EU6 of appendix EU to immigration rules. I believe the respondent’s decision is contrary to the appellant’s right under the EU withdrawal agreement.
Conclusion
I am respectfully inviting the court to allow this appeal.
776, paragraphs 51 and 56), the Court held that factors of relevance, for the purposes of determining whether a refusal to grant a right of residence to a third-country national parent of a child who is a Union citizen means that that child is deprived of the genuine enjoyment of the substance of the rights conferred on him by that status, include the question of who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country national parent.
124, paragraphs 43 and 45; of 15 November 2011, Dereci and Others, C 256/11, EU:C
308), which was delivered after the Court of Appeal’s judgment in Patel, emphasised the importance of the right to EU citizenship and stated that a TCN might acquire a derived right of residence if their removal could deprive an EU citizen of their citizenship rights. In KA, the CJEU drew a distinction between the case of an EU citizen who is an adult and one who is a child. 
