Case No. UKUT-00043(IAC)

at paragraph 68: “68. Consequently, 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 Union territory if such a right is not granted.” 123. At [47] of HC , Lady Hale likewise observed that: “[t]he situation of  Zambrano  carers and their children does not fall within the European Union legislation on access to social security and other welfare benefits. All that  Zambrano  requires is that the children are not effectively deprived of their rights as European citizens by the situation in which they find themselves.” 124. Third, we do not read the Zambrano jurisprudence to warrant an automatic approach. In Chavez-Vilchez and Others v Raad van Bestuur van de Sociale Verbekeringsbank and Others  (10 May 2017) (Case C-133/15) (Grand Chamber),  [2017] 3 WLR 1326 , [2017] 3 CMLR 35 the CJEU ruled at paragraphs 70 and 71 that: “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.” 125. The role of the Zambrano principle in relation to children who have citizenship of the Union was considered by the Supreme Court in Patel (Appellant) v Secretary of State for the Home Department (Respondent) Secretary of State for the Home Department (Respondent) v Shah (Appellant) [2019] UKSC 59. Their decision confirms that the “compelled to leave” threshold is a high one. In the appellant’s case, even assuming an equivalency of threshold in entry clearance cases, that threshold would plainly not be met given the situation of the two British citizen children in the appellant’s case. Her children have strong emotional ties to her as their primary carer and it has not been shown that it would significantly impair their welfare/best interests if their father went to live with them in Sri Lanka. 126. Nor in the wider proportionality assessment have we been satisfied that either the status quo ante or the option open to the sponsor of living in Sri Lanka gives rise to a breach of Article 8. 127. We are mindful when reaching the above conclusion that in MA and SM (Zambrano: EU children outside EU ) Iran [2013] UKUT 380 the Upper Tribunal held that: “(1) In EU law terms there is no reason why the decision in  Zambrano  could not in principle be relied upon by the parent, or other primary carer, of a minor EU national living outside the EU as long as it is the intention of the parent, or primary carer, to accompany the EU national child to his/her country of nationality, in the instant appeals that being the United Kingdom. To conclude otherwise would deny access, without justification, to a whole class of EU citizens to rights they are entitled to by virtue of their citizenship.” 128. However, we do not understand by so holding that the panel was suggesting that there was an automatic basis established by Zambrano for parents of British citizen children living abroad to be admitted under EU law. To the contrary, the first appellant in the above case was an Iranian national living in Turkey with AP, her British citizen child . A lthough the panel in this case considered her case did fall within the ambit of the Zambrano principle, it was allowed because it was the current intention that the child abroad would travel to and reside in the United Kingdom “even if his mother is not granted leave to do so.” (para 53) and also, because of the “exceptional nature of the situation in which the child would find himself if his parent was denied entry into the UK” (para 51). The second appeal, which also featured one of two British citizen children living abroad, was not allowed. 129. To conclude: The decision of the First-tier Tribunal judge has already been set aside for material error of law. The decision we re-make is to dismiss the appellant’s appeal. Signed Date: 21 January 2020 Judge of the Upper Tribunal