Court Of Appeal Considers Zambrano Carers Again

• Published date: 28 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Alex Papasotiriou

Whilst the Immigration (European Economic Area) Regulations 2016 ceased to have effect on 31 December 2020, their retention for transitional purposes, as well as their references in the definition of Appendix EU, make it likely that they will continue to be the subject-matter of court proceedings for some time.

In Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767, the Court of Appeal was called to consider the interpretation of Regulation 16(5)(c) of the 2016 Regulations, relating to Zambrano carers who had a derivative right to reside in the UK.

Facts of Velaj v. Secretary of State for the Home Department [2022] EWCA Civ 767

Mr Velaj is a Kosovan national, against whom the Secretary of State for the Home Department issued a deportation order in 2016. The following year, the Secretary of State refused his human rights claim under Article 8 ECHR. Mr Velaj appealed to the Tribunal.

Mr Velaj's wife and children are British citizens. In her evidence at the appeal hearing, Mrs Velaj stated that she would not follow her husband to Kosovo if he were deported, as she could not leave his mother and the children in the UK. The First-tier Tribunal judge found that the couple's son would be unable to reside in the UK or another EEA state if both his parents left the UK for an indefinite period, and therefore Mr Velaj had a derivative right of residence under regulation 16(5), which constituted an exception to deportation. It was also found that the "very compelling circumstances" test of section 117C(6) of the Nationality, Immigration and Asylum Act 2002 was met. The appeal was upheld on human rights grounds.

The Upper Tribunal set aside that decision on the basis it was vitiated by an error of law. The panel concluded that regulation 16(5)(c) could not be construed as requiring an entirely theoretical assumption of both primary carers leaving the UK and should be interpreted purposively as it was designed to implement EU law. As such, given that his wife had confirmed she would not leave the UK, the UT concluded Mr Velaj did not have a derivative right of residence and remade the decision, dismissing his appeal, following an oral re-hearing.

Permission to appeal to the Court of Appeal was granted solely on the matter of construction of regulation 16(5)(c).

In Patel v Secretary of State for the Home Department [2020] 1 WLR 228, it was observed that the test of compulsion underpinning the Zambrano jurisprudence, namely, whether the Union citizen would be compelled to leave Union territory if the third country national with whom the Union citizen has a relationship of dependency is removed, is a "practical test to be applied to actual facts and not to a theoretical set of facts".

The requirement in regulation 16(5)(c) is framed as follows: BC [the...