[2023] UKUT 00162 (IAC)

I do not need to set out the evidence of the Appellant and [JD] in detail. They were cross-examined by Ms Nolan. The evidence which emerged from their written statements and oral testimony is as follows.

The Appellant, [JD] and their children (including [P]) live together as a family unit. The Appellant works full time (he has the right to do so as a result of his earlier leave as continued by his application under the EUSS). [JD] works only part-time (although she is currently on maternity leave).

Notwithstanding the time spent working, I accept that the Appellant plays a pivotal role in the life of [P] in particular. The documentary evidence shows that [P] has behavioural problems. Although it appears that [P] has not yet been fully diagnosed with autistic spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD) he has now been referred to professionals to consider this. [P] has been excluded from school on a number of occasions and is now attending a pupil referral unit between school attendances.

The evidence as to the Appellant’s involvement with [P] is not limited to his own say-so or that of [JD]. A statement from a Community Staff Nurse with Buckingham Healthcare NHS Trust opines that the Appellant’s absence “will have a significant impact on [P]’s emotional well-being, as well as impact his education as [the Appellant] has taken the role of supporting [P] with his school work”.

A social worker, Ms Ncube, has also provided a statement dated 2 March 2023 in which she states that the Appellant is the main contact for Child and Adolescent Mental Health Services in relation to [P] and “is currently a key person in ensuring that this child remains in education and accesses support that is targeted around the child’s Special Educational Needs and Neurodiversity”. She also states that the Appellant “plays a role of advocacy” (as the Appellant also emphasised in his evidence) and “is a big part of the Child in Need plan that has been proposed by Social Services”. Ms Ncube says that the Appellant’s “availability to participate in these proposed plans are a key factor in us being able to achieve better outcomes for this child.”

There are other reports specifically dealing with [P]’s behaviour which mention the Appellant’s involvement in seeking to resolve problems but those are now quite out of date.

[JD] was asked in evidence why she could not continue to look after [P] if the Appellant left the UK. She accepted that she and the Appellant do co-parent [P] but said that [P] “struggles to self-regulate his emotions” and the Appellant is better able to deal with this. [P] is “able to connect with his father better as they share a male bond”. She “struggles to get through to him” and “he responds better to his father”. She confirmed that, although the main emphasis is on the relationship with [P], the Appellant also helps out with their other children.

Of course, as British citizens, neither [JD] nor the children would be required to leave the UK if the Appellant were to go. In her statement, [JD] says this about the situation which would arise in that eventuality:

“If [the Appellant] is no longer present, [P] would be deprived of having a father, that, money cannot buy. It would reap devastating consequences for the development of our young son causing a detrimental impact on his upbringing emotionally and psychologically. It would also leave me unable to look after [P] as I would not be able to support in the financial upkeep to meet his needs, forcing [P] either into a life of destitute poverty along with our other 3 children that we raise together or sending [P] away from the family unit and country he has been born and raised in. This would deny him of his British citizenship and his rights to access free education, health and social care and a breach of [P]’s human rights.”

The central issue in relation to Zambrano is whether [P] would be obliged to leave the UK if the Appellant had to leave. I do not have to decide what the position would be if [JD] and the children were to remain in the UK and the Appellant were to leave. That position is covered by Article 8 ECHR. The Appellant has been given leave to remain on that basis in the past and I have no reason to suppose that he would not be given leave to remain on that basis in the future were he to apply for it. That though is not relevant to the issue here.

The question I have to ask myself is what would, as a matter of fact, occur. I refer to the requirements of regulation 16 of the EEA Regulations as set out at [13] of the error of law decision (which reflects EU law as it stood before the UK’s withdrawal from the EU). I also refer to the Supreme Court’s judgment in Patel and another v Secretary of State for the Home Department [2019] UKSC 59; [2020] Imm AR 600 (“Patel”) and to the extract from that judgment set out at [14] of the error of law decision. The judgment in Patel is of particular relevance in this case as, in that case as here, the relevant child was living with both parents only one of whom would be required to leave.

For that reason, and because it was not clear from her written statement what the position would be in fact if the Appellant were to leave, I asked [JD] whether she would stay or leave if the Appellant went back to Nigeria. She accepted that this would be a difficult decision not least because of the potential impact on [P] of the withdrawal of the support which he is receiving from the authorities in the UK. However, she said that the family would have to move with the Appellant as she felt that they would be unable to cope without the Appellant. Although Ms Nolan sought to shake [JD]’s evidence in this regard, and [JD] continued to say that it would be a difficult decision for the reasons I have set out, she continued to insist that the family would have to move with the Appellant. I accept her evidence in that regard.

The Appellant as might be expected, also said that the family would have to move together. He pointed out the level of involvement which he has with [P] and said that [P]’s behaviour would be “more challenging” if he were not here. Although he recognised that [P] is now getting some support with his behavioural problems, he pointed out that he (the Appellant) is the initiator of such support as has been obtained. He also pointed out that, although [P] now has some support and has been referred for a fuller diagnosis, that support was not yet completely in place. There were still problems with [P]’s schooling. [P] had not yet had a formal diagnosis. He was still fighting to have [P] moved to a school which could better meet [P]’s needs.

I accept the Appellant’s evidence about the role which he plays in [P]’s life. As I have noted above, that is confirmed by independent professionals (although I accept that the statements are brief, and I do not have a full report in that regard). I am however satisfied that, due to the family’s circumstances, the financial and emotional support which the Appellant provides and the situation in particular in relation to [P], if the Appellant left the UK, the family would leave with him.

Turning back then to regulation 16(5) as it applied at the date of the Respondent’s decision, the Appellant shares primary care of [P] with [JD] (in accordance with regulation 8(b)(ii)). [P] is a British citizen residing in the UK. I am satisfied that [P] would be unable to reside in the UK if the Appellant and [JD] left the UK. I am satisfied that [JD] would leave the UK with the Appellant if he returned to Nigeria, taking all four children with them. It follows that I accept that [P] would “be compelled to leave by reason of his relationship of dependency with his father” (as it was put in Patel). In reaching that finding, I pay particular regard to the strong emotional dependency which [P] has on his father as set out above.

For all of those reasons, I am satisfied that the Appellant meets the definition of a Zambrano carer as set out in regulation 16 of the EEA Regulations. Although regulation 16 is not preserved by the transitional arrangements which now apply, I am also satisfied that the Appellant comes within the provisions of the EU Treaties which apply to such a derivative right of residence.

It follows that I allow the Appellant’s appeal.