[2025] UKUT 00351 (IAC)

The first point to be made is that there are no reported authorities which have assessed how the compulsion test should be approached under the EUSS for those who claim to have this type of derivative right of residence. However, while there are distinctions with the approach taken under the pre-EUSS legal scheme, we are not in entirely virgin legal territory notwithstanding the need for a decision-maker to adjust their frame of reference to look to events as they stood in the past during the continuous qualifying period, the specified date and when the application was made. In broad terms, the position of this appellant shares much in common with the applicants in the ECJ Chavez-Vilchez litigation where the TCN parents of EU citizens were separated from their former EU national partners, who were also parents and potential primary carers for the relevant children. However, here, the separation came after the specified date. For the reasons which follow, we are satisfied that it would be an overly blunt approach, and out of step with the nuanced and fact-sensitive inquiry which is required, to conclude that the judge ought to have disregarded the events which immediately preceded the hearing before him.

Mr Holmes invited us to find that we should adopt a wholly retrospective approach in our assessment of the compulsion test because the structure of Appendix EU calls for consideration of defined points, and periods, of time in the past. Mr Tan did not seek to persuade us otherwise. However, it is unnecessary to conclusively settle this point of interpretation in this decision because the parties were agreed that it was open to the judge to consider the developments which unfolded just before the hearing as casting light upon whether the compulsion test was satisfied when the application was made.

At [53] of the panel’s decision in Maisiri, well-understood principles about how the Immigration Rules should be interpreted were recited. The natural meaning of the words used in the rules must be considered against the relevant background. With that in mind, we turn to the applicable rules which have been copied above. Firstly, condition 3 of EU11 and condition 1 of EU14 both specify that the eligibility criteria of an applicant for indefinite or limited leave to remain is a person with a derivative right to reside. EU11 and EU14 expressly state that the relevant condition must be met at the date of application and in an application made by the required date. This directs the decision-maker to a state of affairs as it existed at particular points of time in the past. Condition 3(b) of EU11 brings into play a further past period of time in the shape of the requirement that an applicant must have completed the continuous qualifying period of five years in a qualifying capacity.

The definition of a person with a derivative right to reside provides: a person who has satisfied the Secretary of State by evidence provided that they are (and for the relevant period have been) or (as the case may be) for the relevant period they were […] resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met: […] they are the primary carer of an EEA citizen […] the EEA citizen is under the age of 18 years and resides in the UK as a self -sufficient person; and […] the EEA citizen would in practice be unable to remain in the UK if the person in fact left the UK for an indefinite period.

As has been observed in a number of authorities (see most recently, Mustaj v SSHD [2025] EWCA Civ 663), this particular part of the Immigration Rules is extremely difficult to decode. The combination of the eligibility requirements and the definition does not expressly exclude circumstances which come after the application was made. Such developments might reasonably inform the position as it pertained at the time of application in assessing whether the EU national child would be compelled to leave and thereby relinquish their retained EU rights in the future. After all, a decision-maker would always have to address this fundamental question after the application was made and would not be expected to use an analytical guillotine to excise any facts in the intervening period. The circumstances of the present, and what may happen in the future, are not rendered an irrelevance by the Appendix EU legal scheme.

We are fortified in this conclusion by what was decided in Maisiri. The primary question to be decided in this appeal was whether the respondent adopted an unlawful policy position in requiring decision-makers to consider whether there was a realistic prospect of a different form of leave being granted should the necessary application be made. The panel interpreted whether Appendix EU permitted such a requirement to be introduced into the decision-making framework. At [95] of his decision, Upper Tribunal Judge Blundell observed that the correct approach was that “the pending appeal against the adverse decision under Appendix EU would be decided on the basis of the actual facts, as and when they are known”. It would be difficult to faithfully adopt such an approach by discounting evidence such as that which emerged shortly before the First-tier Tribunal hearing in the present proceedings.

While Mr Holmes argued that Appendix EU converted any consideration of whether a person with a derivative right of residence qualified for status into a purely retrospective exercise, he maintained that it remained open to a judge to consider evidence provided later as illuminating the circumstances as they were during the assessment window. He argued that the serious criminal allegations made against AJ informed any reasonable consideration of whether the EU national child would have been compelled to leave with his mother in the past. In short, subsequent events had revealed that AJ was never an appropriate or suitable candidate for the child to be left with. Support for the lawfulness of such an approach to the evidence was taken from Elais (fairness and extended family members) [2022] UKUT 00300 (IAC), at [52], where a post-specified date marriage was found to lawfully inform the assessment of whether the relationship was durable for the purposes of Appendix EU before 31 December 2020. The judge in the present proceedings was equally entitled to consider the evidence of the serious criminal allegations made against the appellant’s husband as casting light on the circumstances which pertained until the application was made. This coheres with the analytical approach adopted in accordance with Elais. This latter proposition was agreed by Mr Tan during the hearing. It follows that there was no dispute that the evidence which emerged before the hearing was relevant to the decision-making process which was required.

The authorities are clear that the compulsion test is an intensely fact-specific exercise. The procedural background and fact-finding exercises which underpinned the authorities of both Patel & Shah and Velaj involved critical evidential developments at the hearings before the First-tier Tribunal and Upper Tribunal and serves to underscore the importance of the judicial fact-finding exercise.

The compulsion test is a demanding and high threshold which is not easily reached. However, we are in no doubt that any assessment of this test necessarily involves an evaluative judgement of the facts. On the facts of this case, there was ample scope for the judge to assess the facts as either meeting or falling short of the required threshold. For reasons which will become clear, this is an important conclusion when we turn our minds to the concession which was made at the First-tier Tribunal hearing and whether we should allow it to be withdrawn.