Case No. UKUT-00129-(IAC)

( Emphasis added). 120. T he appellant and her partner could choose for their daughter to remain in the UK with her father whilst the appellant leaves the UK . The Court of Appeal in Patel found that the existence of such a choice meant that there was no question of compulsion : see para. 75 of Patel v SSHD [2017] EWCA Civ 2028 . The Supreme Court , however, concluded to the contrary , finding that there is compulsion, for the purposes of the Zambrano test, where , in practice and based on the actual facts, the child will in fact leave the territory of the Union. 121. We have found, as a fact, that the appellant is the primary carer of her daughter and that if she is required to leave the UK she will take her daughter with her. Accordingly, applying the interpretation of the Zambrano test in Patel , we find that the appellant’s daughter will be compelled to leave the UK as a result of her mother leaving the UK. 122. In Zambrano , as well as the subsequent CJEU cases interpreting and developing the derivative right of residence described therein, the child ren in question faced indefinite exclusion from the territory of the Union. In these cases, it follow ed inextricably (and therefore was not in dispute ) that the child ren , if compelled to leave the UK, would be depriv ed of the genuine enjoyment of the substance of Union citizenship rights protected by Article 20 TFEU . 123. However, in this appeal, in contrast, the appellant and her daughter will be outside the U nion (in Pakistan) for only a temporary period (of up to 9 months). Whilst in Pakistan the appellant’s daughter will be deprived of the enjoy ment of the substance of her Union citizenship rights. The deprivation she will face, however , is only theoretical because if she were to remain in the UK for th is temporary period it is extremely unlikely that , as a young child attending nursery , she would engage in any activities (such as moving within the U nion ) where her rights as a Union citizen would be relevant. The question to resolve, therefore, is whether it is enough that she will be temporarily deprived of the genuine enjoyment of her rights as a citizen of the Union in a theoretical sense. 124. As far as we are aware this question has not been considered in any European or UK cases. However, in Patel , the Supreme Court, after consider ing the CJEU ’s Zambrano jurisprudence , concluded that the test of compulsion is “a practical test to be applied to the actual facts and not to a theoretical set of facts” . Given that the assessment of whether a child will be compelled to leave the Union for the purposes of Article 20 TFEU must be based on the actual facts ( rather than any hypothetical or theoretical scenarios ) , it follows that the assessment of whether a child, as a result of being compelled to leave the territory of the European Union, will be deprived of his or her genuine enjoyment of the rights conferred by Article 20 TFEU in accordance with Zambrano falls to be assessed by considering the actual facts (including how long a child is likely to be outside the territory of the Union), rather than theoretical possibilities. 125. Accordingly , we find that i t is not contrary to the principle in Zambrano for the appellant’s daughter to be compelled to leave the UK with the appellant because she and the appellant will re-enter the UK several months later and any loss of enjoyment of the substance of her Union citi zenship rights (which will be limited to that temporary period) will only be theoretical.