[2024] UKUT 00143 (IAC)

As Mr Thompson pointed out, Patel was concerned with the factors relevant to a Zambrano right, in particular what was meant by “unable to reside” in the EEA Regulations 2006. The case of Patel involved two conjoined appeals. Mr Patel was the carer of elderly and infirm British citizen parents and so his case has no relevance. Mr Shah whose appeal was considered alongside that of Mr Patel was the father of a British citizen child but his wife, the child’s mother, also continued to live with them. Accordingly, the Court was considering the position of joint primary carers. As such, the position of Mr Shah is factually different from the Appellant’s case. She is her child’s sole carer. However, Mr Thompson prayed in aid the principles which the Supreme Court said applied to the issue whether a child would be compelled to leave the UK if his or her primary carer had to leave. Those are set out succinctly at [30] to [32] of the judgment (where the Supreme Court was considering the error made by the Court of Appeal) as follows:

“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.

It is likewise not relevant, contrary to the submission of Mr Blundell, that, had Mrs Shah remained in the UK with the child, Mr Shah could have had no derivative right of residence. On the facts as found by the FTT, the relevant relationship of dependency with Mr Shah was made out and that was not going to happen.

32.

In those circumstances 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.”