Patel v Secretary of State for the Home Department [2019] UKSC 59

The Supreme Court considered two conjoined appeals on the Zambrano principle, concerning derivative residence rights for non-EU nationals caring for EU citizen dependants. Mr Patel, caring for ill British parents, lost his appeal. Mr Shah, primary carer of his British son, succeeded.

Facts

Two conjoined appeals concerned the scope of the principle in Ruiz Zambrano v Office national de l’emploi (Case C-34/09), under which a third-country national (TCN) may acquire a derivative right of residence where removal would compel a dependent Union citizen to leave EU territory. The right was implemented domestically by regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006.

Patel

Mr Patel, an Indian national, cared for his British parents. His father suffered end-stage kidney disease requiring approximately eight hours of dialysis per day, which Mr Patel administered. His mother was ill and immobile. The First-tier Tribunal (FTT) accepted the parents were dependent on him, but found that, if Mr Patel were removed, his father would not in fact return to India with him but would remain in the UK receiving a social services care package and medical treatment, albeit with a lower quality of life.

Shah

Mr Shah, a Pakistani national, was the primary carer of his infant British son. His British wife worked full-time outside the home. The FTT found that, if Mr Shah were removed, Mrs Shah would accompany him to Pakistan, and the child would have no option but to go too. The FTT and Upper Tribunal found the child would be compelled to leave Union territory. The Court of Appeal reversed, holding that Mrs Shah was capable of caring for the child in the UK.

Issues

The central issue was the nature and intensity of the ‘compulsion’ required under the Zambrano jurisprudence for a TCN to acquire a derivative right of residence. Specifically: (i) whether, in the case of an adult Union citizen (Patel), a reduced quality of care available in the UK could satisfy the test; and (ii) in the case of a Union citizen child (Shah), whether the availability of another parent theoretically capable of caring for the child defeats compulsion where, as a matter of fact, the family would leave together.

Arguments

Patel

Mr Roe QC submitted that the tribunals and Court of Appeal approached compulsion with excessive rigidity and should have taken into account that Mr Patel’s father could not receive the same level of care in the UK without him. He relied on the parents’ right to family life and article 25 of the Charter (rights of the elderly), and on Chavez-Vilchez.

Mr Blundell for the Secretary of State submitted that the required level of compulsion was not reached: it was merely desirable that Mr Patel remain, and the father could be treated in the UK without him. Charter rights could not extend EU law beyond its limits under article 51(2).

Shah

Mr Blundell submitted that Mrs Shah’s decision to leave was her own choice, reliance on family reunification being insufficient under Dereci, O and KA. Mr Malik for Mr Shah relied on the FTT’s unchallenged findings of fact.

Judgment

Lady Arden (with whom Lady Hale, Lord Carnwath, Lord Briggs and Lord Sales agreed) drew heavily on the CJEU’s consolidation of the Zambrano jurisprudence in KA v Belgium (Case C-82/16).

Distinction between adult and child Union citizens

The Court emphasised the CJEU’s distinction: for an adult Union citizen, a relationship of dependency justifying a derivative right of residence is conceivable only in ‘exceptional cases’ where no form of separation is possible. For a minor, the assessment involves the best interests of the child and all specific circumstances, including age, emotional development, emotional ties to each parent, and risks to the child’s equilibrium from separation.

Patel appeal dismissed

The overarching Zambrano requirement is that the Union citizen would in fact be compelled to leave EU territory. On the FTT’s findings, Mr Patel’s father would not accompany him to India. That conclusion was determinative. Chavez-Vilchez did not relax the compulsion test for adults; KA reaffirmed the exceptional nature of adult dependency cases. The Charter could not extend EU law’s field of application (article 51(2)), and the Court had already rejected any article 8 Convention claim.

Shah appeal allowed

The Court of Appeal erred in law by treating as determinative what could happen if Mr Shah were removed (the mother theoretically caring for the child in the UK), rather than what the FTT found would happen (the whole family leaving). The test of compulsion is a practical one, to be applied to the actual facts, not a theoretical set of facts. Mr Shah was the primary carer, the child had the relevant relationship of dependency with him, and the FTT’s factual finding that the family would leave together meant the child would be compelled to leave Union territory. It was irrelevant that, on a different factual scenario, the mother could have remained with the child.

Implications

The judgment clarifies the practical application of the Zambrano test in UK law:

• For adult Union citizens, a derivative right for a TCN carer arises only in exceptional cases where no form of separation is possible. A reduced quality of care in the Union citizen’s home country is insufficient if they would not in fact leave.
• For child Union citizens, the test is a practical, fact-sensitive one. Where the TCN is the primary carer and the factual finding is that the family would leave together, the child is compelled to leave even if the other parent is theoretically capable of providing care.
• The decision disapproves of the Court of Appeal’s theoretical approach in Shah, confirming that tribunals must apply the compulsion test to the actual facts as found.
• Charter rights (articles 7, 24, 25) cannot extend the scope of EU law under article 51(2); reliance on family life or family reunification alone is insufficient to establish compulsion.

The decision matters to TCN carers of British citizens, particularly primary carers of British children, and clarifies the approach tribunals must take. It confirms that the jurisprudence remains anchored in the requirement of genuine compulsion to leave Union territory, while recognising that this is to be assessed on the practical realities facing the family, not on hypothetical alternatives.

Verdict: The Shah appeal was allowed; the Patel appeal was dismissed.

Source: Patel v Secretary of State for the Home Department [2019] UKSC 59