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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028 (13 December 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/2028.html Cite as: [2018] INLR 179, [2018] WLR 5245, [2017] EWCA Civ 2028, [2018] Imm AR 584, [2018] 2 CMLR 22, [2018] 1 WLR 5245, [2018] 2 All ER 1093 |
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ON APPEAL FROM
THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER),
JUDGE HANSON AND DEPUTY JUDGES DRABU AND HARRIS
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE IRWIN
and
LADY JUSTICE THIRLWALL
____________________
NILAY ![]() | Appellant |
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- and – |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
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And Between : |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant |
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- and - |
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(1) ADIL SHAH (2) NABIL BOUROUISA |
Respondents |
____________________
Pennington-Benton
(instructed by Farani Taylor Solicitors) for the Appellant Nilay
Patel
David Blundell (instructed by The Government Legal Department) for the Respondent to Patel
Julia Smyth (instructed by The Government Legal Department) for the Appellant in the matters of Adil Shah and Nabil Bourouisa
Zane Malik (instructed by Lincolns Solicitors) for the Respondent Shah
Nabil Bourouisa appeared as a Litigant in Person
Hearing dates: 12 and 13 July 2017
____________________
Crown Copyright ©
Lord Justice Irwin :
Introduction: The Questions
The EU Provisions
"Article 2
Definitions
For the purposes of this Directive:
1) "Union citizen" means any person having the nationality of a Member State;
2) "Family member" means:
(a) the spouse;
…
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);
3) "Host Member State" means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.
Article 3
Beneficiaries
1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 or Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen.
…
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people."
"Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
Article 24
The rights of the child
1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.
Article 25
The Right of the Elderly
The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life."
The Decision in Ruiz Zambrano v Office National de l'Emploi (C-34/09) 8 March 2011 [2012] QB 265
"…essentially, whether the provisions of the TFEU … are to be interpreted as meaning that they confer on a relative in the ascending line who is a third country national, upon whom his minor children who are European Union citizens are dependant, a right of residence in the Member State of which they are nationals and in which they reside …" (Judgment, paragraph 36)
"42. In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann, paragraph 42).
43. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.
44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.
45. Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen."
"45. On the other hand, a refusal to allow the parent, whether a national of a member state or a national of a non-member country, who is the carer of a child to whom article 18 EC and Directive 90/364 grant a right of residence, to reside with that child in the host member state, would deprive the child's right of residence of any useful effect. It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer and accordingly that the carer must be in a position to reside with the child in the host member state for the duration of such residence: see, mutatis mutandis, in relation to article 12 of Regulation No 1612/68, Baumbast v Secretary of State for the Home Department (Case C-413/99) [2003] ICR 1347 , 1390-1391, paras 71-75."
United Kingdom Regulations
"[15A. Derivative right of residence]
(1) A person ("P") who is not [an exempt person] and who satisfies the criteria in paragraph (2), (3), (4) [(4A)] or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
…
[(4A) P satisfies the criteria in this paragraph if–
(a) P is the primary carer of a British Citizen ("the relevant British citizen");
(b) the relevant British citizen is residing in the United Kingdom; and
(c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.
(5) P satisfies the criteria in this paragraph if–
(a) P is under the age of 18;
(b) P's primary carer is entitled to a derivative right to reside in the United Kingdom by virtue of paragraph (2) or (4);
(c) P does not have leave to enter, or remain in, the United Kingdom; and
(d) requiring P to leave the United Kingdom would prevent P's primary carer from residing in the United Kingdom.
(6) For the purpose of this regulation–
(a) "education" excludes nursery education;…
(b) "worker" does not include a jobseeker or a person who falls to be regarded as a worker by virtue of [regulation 6(2); and]
[(c) "an exempt person" is a person–
(i) who has a right to reside in the United Kingdom as a result of any other provision of these Regulations;
(ii) who has a right of bode in the United Kingdom by virtue of section 2 of the 1971 Act;
(iii) to whom section 8 of the 1971 Act, or any order made under subsection (2) of that provision, applies; or
(iv) who has indefinite leave to enter or remain in the United Kingdom.]
(7) P is to be regarded as a "primary carer" of another person if
(a) P is a direct relative or a legal guardian of that person; and
(b) P–
(i) is the person who has primary responsibility for that person's care; or
[(ii) shares equally the responsibility for that person's care with one other person who is not an exempt person.]
[(7A) Where P is to be regarded as a primary carer of another person by virtue of paragraph (7)(b)(ii) the criteria in paragraphs (2)(b)(iii), (4)(b) and (4A)(c) shall be considered on the basis that both P and the person with whom care responsibility is shared would be required to leave the United Kingdom.
(7B) Paragraph (7A) does not apply if the person with whom care responsibility is shared acquired a derivative right to reside in the United Kingdom as a result of this regulation prior to P assuming equal care responsibility.]
(8) P will not be regarded as having responsibility for a person's care for the purpose of paragraph (7) on the sole basis of a financial contribution towards that person's care.
(9) A person who otherwise satisfies the criteria in paragraph (2), (3), (4)2, (4A) or (5) will not be entitled to a derivative right to reside in the United Kingdom where the Secretary of State [or an immigration officer] has made a decision under [–
(a) regulation 19(3)(b), 20(1)[,20A(1) or 23A]; or
(b) regulation 21B(2) where that decision was taken in the preceding twelve months.]"
European Authority after Zambrano and before Chavez-Vilchez
"… The mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave the Union, if such a right is not granted."
"41. Admittedly, it is possible that S and L might choose to follow their respective spouses to their countries of origin in order to preserve the unity of their family life. The fact that their children have Union citizenship cannot amount to putting them "under house arrest" in the territory of the European Union, when they have been invested with full parental authority by the judicial authorities of the Union itself.
42. In any event, if they chose to leave—which in my view seems unlikely, particularly in Case C-357/11, for reasons set out below—the young children who are Union citizens would indeed have no other choice but to leave the territory of the Union and, consequently, lose the enjoyment of the rights conferred on them as citizens of the Union. However, in my view, departure from the territory of the Union would be freely decided by their mother for a reason linked to the preservation of family life and would not be imposed under the implementation of national legislation.
…
44. The reasons linked to the departure of the citizen of the Union from its territory are therefore particularly limited in the case law of the court. They concern situations in which the Union citizen has no other choice but to follow the person concerned, whose right of residence has been refused, because he is in that person's care and thus entirely dependent on that person to ensure his maintenance and provide for his own needs."
English Authority after Zambrano
"29. It is to be noted that in answering the question the Court did not adopt the answer suggested by the Advocate General, reproduced in [25] above. It did not accept that some impediment of the right short of denial might fall within the scope of the principle. That is consistent with its observation in [68] that it is not enough that family life is jeopardised or that the family remaining behind will be adversely economically affected. The Court's answer also shows that it considered that it is for the national courts to determine whether, as a matter of fact, an EU citizen would be compelled to join an ascendant family member denied the right to remain in EU territory."
"…whether the Zambrano principle can apply where an EU citizen is not forced, as a matter of substance, to follow the non-EU national out of the European Union, but where their continuing residence in the European Union is affected in some sense because, for example, the quality of life is diminished. The appellants submit that it is at least arguable and not acte clair that the principle can apply in those circumstances. The Secretary of State submits that the case law is clear and consistent and is inconsistent with the appellant's submissions." (paragraph 55)
"… there is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the European Union. If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci [2012] 1 CMLR 45, but that is an entirely distinct area of protection." (paragraph 63)
The decision in Chavez-Vilchez and Others v Raad van Bestuur van de Sociale Verbekeringsbank and Others (10 May 2017) (Case C-133/15) (Grand Chamber), [2017] 3 WLR 1326, [2017] 3 CMLR 35
"33. In the opinion of the referring court, it is apparent from the judgments of 8 March 2011, Ruiz Zambrano (C-34/09, EU:C:2011:124), and of 15 November 2011, Dereci and Others (C-256/11, EU:C:2011:734), that the applicants in the main proceedings would acquire under Article 20 TFEU a right of residence in the Netherlands, derived from the right of residence of their children, who are Union citizens, provided that those children are in a situation such as that described in those judgments. It is necessary, in each of the disputes in the main proceedings, to determine whether the circumstances are such that those children would be obliged, in practice, to leave the territory of the European Union if the right of residence was refused to their mothers."
"43. First, as regards the relationships between the parents and the children, it is apparent from the order for reference that contact between the children and their fathers was, variously, frequent, seldom or even non-existent. Thus, in one case, the father could not be traced, and in another the father was in a supported accommodation scheme. In three cases, the father was contributing to maintenance costs for the child, while, in five other cases, no contribution was made. Whereas in two out of the eight cases the parents shared custody, in the six other cases the primary day-to-day care of the child was the responsibility of the mother alone. Last, in half of the cases, the child was living with the mother in an emergency refuge."
Some but not all of the children had exercised their freedom of movement between Member States.
"68. In that regard, it must be recalled that, in the judgment of 6 December 2012, O and Others (C-356/11 and C-357/11, EU:C:2012:776, paragraphs 51 and 56), the Court held that factors of relevance, for the purposes of determining whether a refusal to grant a right of residence to a third-country national parent of a child who is a Union citizen means that that child is deprived of the genuine enjoyment of the substance of the rights conferred on him by that status, include the question of who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country national parent.
69. As regards the second factor, the Court has stated that it is the relationship of dependency between the Union citizen who is a minor and the third country national who is refused a right of residence that is liable to jeopardise the effectiveness of Union citizenship, since it is that dependency that would lead to the Union citizen being obliged, in practice, to leave not only the territory of the Member State of which he is a national but also that of the European Union as a whole, as a consequence of such a refusal (see, to that effect, judgments of 8 March 2011, Ruiz Zambrano, C-34/09, EU:C:2011:124, paragraphs 43 and 45; of 15 November 2011, Dereci and Others, C-256/11, EU:C:2011:734, paragraphs 65 to 67; and of 6 December 2012, O and Others, C-356/11 and C-357/11, EU:C:2012:776, paragraph 56).
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 20 TFEU 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 at issue in the main proceedings, 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.
72. In the light of the foregoing, the answer to the first and second questions is that Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a Union citizen would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child's third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is 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 indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, 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 the child's equilibrium."
"77. Accordingly, the application of such national legislation on the burden of proof does not relieve the authorities of the Member State concerned of the obligation to undertake, on the basis of the evidence provided by the third-country national, the necessary inquiries to determine where the parent who is a national of that Member State resides and to examine, first, whether that parent is, or is not, actually able and willing to assume sole responsibility for the primary day-to-day care of the child, and, second, whether there is, or is not, such a relationship of dependency between the child and the third-country national parent that a decision to refuse the right of residence to the latter would deprive the child of the genuine enjoyment of the substance of the rights attached to his or her status as a Union citizen by obliging the child to leave the territory of the European Union, as a whole.
78. In the light of the foregoing, the answer to the third question is that Article 20 TFEU must be interpreted as not precluding a Member State from providing that the right of residence in its territory of a third-country national, who is a parent of a minor child that is a national of that Member State and who is responsible for the primary day-to-day care of that child, is subject to the requirement that the third-country national must provide evidence to prove that a refusal of a right of residence to the third-country national parent would deprive the child of the genuine enjoyment of the substance of the rights pertaining to the child's status as a Union citizen, by obliging the child to leave the territory of the European Union, as a whole. It is however for the competent authorities of the Member State concerned to undertake, on the basis of the evidence provided by the third-country national, the necessary enquiries in order to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences."
The Individual Cases: Shah
"17. The next question I have to determine is whether if the appellant was not permitted to remain in the United Kingdom, the British citizen child would have to leave this country. In this regard I take into account that the appellant appears to be in a happily married relationship with his wife. She appears to be willing to take on the mantle of providing the family's financial needs, forsaking her duties as a mother to nurse her young child. When she was asked what would happen if the appellant was not allowed to stay in this country, she replied that they would have to move as a family. I have no reason to doubt the sincerity of that statement.
18. If, as I find it to be the case, that the appellant's wife will wish to move with him to Pakistan, then the question remains whether the child would have to leave also. Bearing in mind that the child is only one and a half years old and bearing in mind that the best interest of children is to remain with both their parents, it seems to me the conclusion inescapable that the child would have to leave with his parents.
19. For all the reasons given above, I find that the appellant satisfied the requirements of regulation 15A of the 2006 regulations."
"Correctly identified the issues before him. He found that the appellant was indeed the primary carer of the infant child. Quite properly taking account of the "happily married relationship" the judge noted that when the sponsor was asked what would happen if the appellant was not allowed to stay in this country, she said "they would have to move the family". The judge accepted the sincerity of that statement."
Judge Drabu went on to conclude that if the family moved, then of course the child would move.
"I unhesitatingly reject the submission made by Ms Fujiwala that in determining this appeal Judge Hussain applied the incorrect legal test. Of course the child would leave the United Kingdom because the parents would have no option but to take him with them. He is of a very tender age and needs constant care and attention. The removal of the appellant would make it impossible for the mother to take care of the infant without recourse to public funds. That cannot and is not in the public interest nor is in the best interests of the child to be separated from his father in the circumstances of this case." (paragraph 10)
"Both the F-tT and the UT thus failed to address the essential prior question of whether, if [Shah] were required to leave [Ms Ahmad] would be "compelled" to leave or whether she would merely choose to do so."
The Individual Cases: Bourouisa
"28. I find that if the appellant were required to leave the United Kingdom this would impact on Adam to the extent that he would be unable to reside in the United Kingdom. In her evidence the appellant's wife stated that she would follow the appellant to Algeria because the alternative would be for her to quit her job and go on benefits. This would furthermore mean she would probably lose her flat. Whilst Adam would have a right to reside in the United Kingdom on account of his British citizenship he would not actually be able to do so as his mother would be removing him from this country to go and live in Algeria.
29. On balance, considering all the evidence in the round including all the contents of the appeal bundles, oral evidence and submissions given at the hearing I find that the appellant has shown that he is Adam's Primary Carer and that Adam would be unable to reside in the United Kingdom or in another EEA State if the appellant was required to leave. The appellant therefore complies with Regulation 15A of the 2006 EEA Regulations."
"10. The First-tier Tribunal decision allowing the appeal was based on the Appellant's family circumstances namely that the Appellant's wife was working full-time and that his son Adam was 5 years old and had learning difficulties. I am satisfied that the First-tier Tribunal Judge carefully considered all the available evidence and that her reasons for allowing the appeal were balanced and well explained particularly within paragraphs 26 to 29 of her decision. Furthermore the grant of permission to appeal contends that the employment of the Appellant's wife would enable the Appellant to bring him within the Regulation. I agree with the contention made by Mr Lamb in his Rule 24 response that such an argument is perverse for two reasons. Firstly the Appellant's wife has been working for seven years and this is not a matter when she suddenly found a job deliberately in order to make herself unavailable to care for Adam and secondly it is totally unreasonable to expect her to give up her job and rely on benefit in order to fit into the Secretary of State's argument that she could look after Adam."
"I do not feel that my son should grow up without his dad and I should not be left without a husband who I love, who I have chosen to marry and have a son with, we are a family unit and a very strong one at that. Without my husband's support and the care and devotion he gives me and our son Adam, I would be unable to work and life comfortably and would have to live off benefits. I do not see any logic and sense to remove my husband. He is not a burden on the State financially and he speaks perfect English and he is well-integrated into the community."
Therefore, here too the substance of the attack by the Secretary of State was to the effect that both the F-tT and UT had substituted a consideration of maintaining family life for a proper consideration of the test set out in Zambrano.
Individual Cases: Patel
"…is the primary carer for them both as they are both in poor health. His father has final stage kidney disease and … suffers from high blood pressure while his mother suffered a heart attack in July 2012 and has a very poor knee function which makes her relatively immobile".
He states:
"All I wish to do is to ensure that my parents do not suffer, they will simply not be at ease under the care of anyone apart from me. The fact that they are my parents means that I will provide emotional and physical support above and beyond any potential carer. I am doing everything in my power and ability to ensure that they feel safe and secure, whether that be by taking them to hospital or taking care of any other physical and mental health needs. To separate me from my parents in this difficult period in their life is unnecessarily cruel and punishing to them." (paragraph 12)
"The area of dispute therefore is whether the appellant has also established to the requisite standard that the relevant British citizen, i.e. his father, would be unable to reside in the United Kingdom or in another EEA State if the appellant was required to leave, see Reg 15A(4A)(c)." (paragraph 14)
"19. … If the appellant's father remains in the United Kingdom there is no question, in my judgment, but that he would be provided with a social services package together with medical treatment appropriate for a person in his situation who does not have a full-time primary carer. Those circumstances might well result in the appellant's father having to be admitted to hospital for his dialysis treatment which would clearly not be as good as the current arrangement where his treatment is provided essentially by his son at home, but that treatment would continue to be provided given his father's status as a British citizen. His father would also be eligible for any additional welfare benefits appropriate to his condition and taking account of the severe mobility difficulties of his wife, which I also accept. In those circumstances the comparison between the situation of the appellant's father if he went to India with the appellant, as opposed to remaining in the United Kingdom with his wife but without the appellant can only be resolved in my judgment by concluding that the notion of the appellant's father choosing or feeling obliged to leave the United Kingdom is simply untenable, despite the detrimental impact on both his parents, which I accept if he were to be required to leave. The fact of the matter is that the medical needs of the appellant's father can only be secured with any confidence by remaining in the United Kingdom rather than going to India and I am simply unable to accept his father (and mother) would not see that as the reality of his situation. In all those circumstances therefore I am not satisfied the appellant has proved that his father would be unable to reside in the United Kingdom for the purposes of regulation 15 A(4A)(c) of the 2006 regulations if the appellant was required to leave. Accordingly therefore his appeal fails."
"21. In Ayinde and Thinjom (carers- Reg 15A - Zambrano) [2015] UKUT 00560 it was held that (i) The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano [2011] EUECJ C-34/09 is limited to safeguarding a British citizen's EU rights as defined in Article 20; (ii) The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union; (iii) The requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the carer to leave the United Kingdom. A comparison of the British citizen's standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the United Kingdom' (iv) The Tribunal is required to examine critically a claim that a British citizen will leave the Union if the benefits he currently receives by remaining in the United Kingdom are unlikely to be matched in the country in which he claims he will be forced to settle."
"28. The report also contains the following observation:
"Psychologically and emotionally Mr and MrsPatel
would not be able to cope with strangers caring for them. Culturally, this is very difficult and in any case to date, their son has provided for their care. Mrs
Patel
becomes distressed and tearful with the prospect of not having their son living with them and Nilay says that if he is unable to stay in this country, he will take his parents back to India and care for them, even though his father would be unable to continue with his present treatment of Peritoneal Dialysis as the equipment and consumables are not available in India."
"31. … submits that the analysis in these cases readily explains why it is that putting the child up for adoption in a Zambrano type case is not an acceptable option. The Union citizen's right to reside implicitly includes the right to being tended for and protected by his or her primary carer. The reason for this, it is submitted, is that the right to reside does not stand alone. It includes the right to live with basic dignity/protection of loved ones. In the context of children or cared-for adult dependants that will often translate into an implied right to be cared for by a loved one, where that person is the primary carer."
Conclusions
Lady Justice Thirlwall:
Lord Justice Lindblom:
Note 1 As this judgment was in a final state of preparation, our attention was drawn by counsel to the decision of the Supreme Court in R (HC) v Secretary of State for Work and Pensions and others [2017] UKSC 73. The approach in that case is consistent with my analysis. The judgment of Elias LJ in Harrison was explicitly approved by Lord Carnwath, see paragraph 15. [Back]