[2025] UKUT 00351 (IAC)

Purpose

EU1. This Appendix sets out the basis on which an EEA citizen and their family members, and the family members of a qualifying British citizen, will, if they apply under it, be granted indefinite leave to enter or remain or limited leave to enter or remain.

Requirements and procedure

Requirements for indefinite leave to enter or remain other than as a joining family member of a relevant sponsor

EU2. The applicant will be granted indefinite leave to enter (where the application is made outside the UK) or indefinite leave to remain (where the application is made within the UK) where:

[…]

Requirements for limited leave to enter or remain other than as a joining family member of a relevant sponsor

EU3. The applicant will be granted five years’ limited leave to enter (where the application is made outside the UK) or five years’ limited leave to remain (where the application is made within the UK) where:

[…]

EU6. A valid application made under this Appendix which does not meet the requirements for indefinite leave to enter or remain or limited leave to enter or remain will be refused.

EU7. (1) Annex 1 sets out definitions which apply to this Appendix. […]

[…]

Eligibility for indefinite leave to enter or remain

Persons eligible for indefinite leave to enter or remain as a relevant EEA citizen or their family member, or as a person with a derivative right to reside or with a Zambrano right to reside

EU11. The applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen or their family member (or as a person with a derivative right to reside or a person with a Zambrano right to reside) where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application and in an application made by the required date, one of conditions 1 to 7 set out in the following table is met:

[…]

(a) The applicant:

The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and

Since then no supervening event has occurred in respect of the applicant

[…]

Eligibility for limited leave to enter or remain

Persons eligible for limited leave to enter or remain as a relevant EEA citizen or their family member, as a person with a derivative right to reside or with a Zambrano right to reside or as a family member of a qualifying British citizen

EU14. The applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application and in an application made by the required date, condition 1 or 2 set out in the following table is met:

(a) The applicant is:

The applicant is not eligible for indefinite leave to enter or remain under paragraph EU11 of this Appendix solely because they have completed a continuous qualifying period of less than five years; and

Where the applicant is a family member of a relevant EEA citizen, there has been no supervening event in respect of the relevant EEA citizen

[…]

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:

resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:

resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:

resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:

in addition:

‘relevant period’ means here the continuous qualifying period in which the person relies on meeting this definition; and

unless the applicant relies on being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case, the relevant period must have been continuing at 2300 GMT on 31 December 2020; and

where the role of primary carer is shared with another person in accordance with sub -paragraph (b)(ii) of the entry for ‘primary carer’ in this table, the reference to ‘the person’ in sub -paragraphs (a)(iv) and (c)(iii) above is to be read as ‘both primary carers’; and

‘self-sufficient person’ means a person with sufficient resources not to become a burden on the social assistance system of the UK, regardless of whether they hold comprehensive sickness insurance cover in the UK; and

‘education in the UK’ excludes nursery education but does not exclude education received before the compulsory school age where that education is equivalent to the education received at or after the compulsory school age

[Emboldening and underlining in original]

[22] What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the TCN, with whom the Union citizen has a relationship of dependency, is removed. As the CJEU held in O v Maahanmuuttovirasto (Joined Cases C-356/11and C-357/11) [2013] Fam 203, it is the role of the national court to determine whether the removal of the TCN carer would actually cause the Union citizen to leave the Union. […]

[24] It is not necessary to cite further passages from KA. It will be observed that in KA the CJEU drew on its earlier decision in Chavez-Vilchez [2018] QB 103. That case concerned several TCN mothers, whose children were Dutch and who claimed a derivative right to reside in The Netherlands. The Dutch Government rejected these claims on the basis that the fathers of the children were also Dutch. Some of the fathers had a degree of involvement in their child’s upbringing but they lived apart from the child’s mother and were not the primary carer. The CJEU held that it was not a sufficient answer to the mother’s claim for residence that the father could in theory become the child’s carer. The Dutch court had to assess whether the child would be compelled to leave the Union, and in making that decision the national court had to take into account all the circumstances, including the best interests of the child. The CJEU held:

“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 20FEU 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, 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.”

[25] The final sentence of para 71 of the CJEU’s judgment in Chavez-Vilchez identifies the matters which the national court must take into account when deciding whether the requirement for compulsion is fulfilled. Chavez-Vilchez has to be read in the light of the particular facts before the CJEU, which were of separated parents where the Union citizen parent was not the primary carer and where the national court might well conclude that, having regard to the child’s best interests and the extent of their ties to their mother, the relevant relationship of dependency on the mother was made out. There is no direct analogy with a case, such as the Shah appeal, where the family is living together. In that situation, where the TCN is the primary carer and the parent with whom the child has the relevant relationship of dependency and the Union parent will stay with them so as to keep the family together, it will be in the child’s best interests to remain with both parents. Because Mr Shah was the primary carer, the need for a relationship of dependency with the TCN was fulfilled. Moreover, the quality of that relationship is under the jurisprudence of the CJEU a relevant factor in determining whether the child is compelled to leave the jurisdiction (see Chavez-Vilchez [2018] QB 103, para 71; KA [2018] 3 CMLR 28, para 70).

[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 [2018] QB 103, 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.

[33] The history which I have set out above illustrates that the premise upon which the impact on the British citizen dependant’s rights is considered is, and always has been, expressed in exactly the same terms for a Zambrano carer as it is for a Chen or Ibrahim/Teixeira carer, and that this was a matter of deliberate choice. The interpretation must therefore be the same irrespective of which of these derivative rights is being claimed. Moreover, the phrase must bear the same meaning irrespective of whether the applicant for derivative rights is a sole primary carer, or shares caring responsibilities equally with another person.

[47] […] The focus is on whether the British citizen dependant would be “unable” to remain in the UK “if” something happens–i e on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision-maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. Given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.

[48] “If the person left the UK for an indefinite period” could either mean “in the event that the person [in fact] left the UK for an indefinite period” or “on the hypothesis that the person will leave the UK for an indefinite period (regardless of whether in fact he would do so)”. The former seems to me to be the more natural interpretation, and carries with it the necessary implication that the postulated event (here, leaving the UK) is realistic, and not just theoretical. At the risk of stating the obvious, a purely hypothetical event could have no impact, in practice, on the ability of the child or other British citizen dependant to remain in the UK.

[49] It is clear from Chavez-Vilchez [2018] QB 103 and Patel [2020] 1 WLR 228 that the question whether the dependent EU citizen would be “unable to reside in the UK” depends on a fact-specific inquiry. I agree with the Upper Tribunal that it requires a nuanced analysis of inability, and not a simple analysis of a hypothetical question, and that must mean that the decision-maker is looking at what is likely to happen in reality. As they put it at para 48 of the determination, “the key issue of inability to reside in the United Kingdom requires detailed consideration and a causal link with the departure of both carers”.

[50] […] Requiring the decision-maker to assume that both primary carers will leave the UK when one of them will undoubtedly stay behind also precludes the type of nuanced inquiry that was envisaged in Chavez-Vilchez […]

[51] I am fortified in my view of the correct construction by the phrase used in the predecessor provision, regulation 15A(4A): “if P were required to leave” the UK which seems to me to be even clearer. Assuming that “required to leave” is given a wider meaning than “legally compelled” in line with Zambrano [2012] QB 265 itself (as I consider it must be), that means “in the event that P will be forced to leave the UK”. The decision-maker is looking at the likely impact upon the child of the primary carer being forced by law or by economic pressure to leave the UK. It presupposes that on the facts of the specific case, this is a realistic hypothesis.

[52] The meaning of the phrase does not change when there are two primary carers. In the previous Regulations the decision-maker was required to consider the question whether the child would be unable to remain in the UK “on the basis that both P and the person with whom care responsibilities are shared would be required to leave the United Kingdom”. “On the basis that” cannot be interpreted as requiring a counterfactual assumption. It must mean that the decision-maker is required to look at matters on a factual basis, i e from the perspective of what would happen to the child if in fact, in the circumstances of that specific case, both primary carers would leave the UK. The words read into regulation 16(5)(c) by regulation 16(9) make no material difference to the approach to be taken.

[68] […] the immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child.

[69] I can also envisage a Zambrano carer whose limited leave to remain is due to expire making an application under regulation 16(5)(c) and succeeding on the basis that they would have to leave the UK as soon as their limited leave expired and the child would have to go with them. In such a case if the decision-maker asks “what will happen to the child in the event that the primary carer leaves the UK for an indefinite period?” they will not be positing a completely unrealistic scenario. […]