Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA131412014

THE IMMIGRATION ACTS

Heard at The Royal Courts of Justice, Belfast

Decision & Reasons Promulgated
On 19th October 2015
On 13th June 2016

Before

The President, The Hon. Mr Justice McCloskey

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

JIANFENG TANG
Respondent

Representation:

Appellant: Mr P Duffy, Senior Home Office presenting Officer
Respondent: Ms B Muldoon, of MSM Law

DECISION AND REASONS

Introduction

1. The decision lying at the heart of this appeal was made on behalf of the Secretary of State for the Home Department (the "Secretary of State") on 03 March 2014. By this decision the Secretary of State refused the application of the Respondent, a national of China aged 30 years, for a residence card under the Immigration (European Economic Area) Regulations 2006 (the "EEA Regulations"). The Respondent's appeal to the First-tier Tribunal (the "FtT") succeeded. The grant of permission to this Tribunal is couched in the following terms:
"[Arguably] the Judge has not dealt with/has not adequately dealt with the question of whether or not the minor child concerned would be required to leave the United Kingdom if the Appellant was returned to China. The Appellant's own evidence is that he lives ???? with his wife, his child, his father in law and the father in law's family ?.."

EEA Regulations

2. In this appeal the key provision of the EEA Regulations is regulation 15A, which provides, in material part:
"(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.
(2) P satisfies the criteria in this paragraph if-
(a) P is the primary carer of an EEA national ("the relevant EEA national"); and
(b) the relevant EEA national-
(i) is under the age of 18;
(ii) is residing in the United Kingdom as a self-sufficient person; and
(iii) would be unable to remain in the United Kingdom if P were required to leave.
(3) P satisfies the criteria in this paragraph if-
(a) P is the child of an EEA national ("the EEA national parent");
(b) P resided in the United Kingdom at a time when the EEA national parent was residing in the United Kingdom as a worker; and
(c) P is in education in the United Kingdom and was in education there at a time when the EEA national parent was in the United Kingdom.
(4) P satisfies the criteria in this paragraph if-
(a) P is the primary carer of a person meeting the criteria in paragraph (3) ("the relevant person"); and
(b) the relevant person would be unable to continue to be educated in the United Kingdom if P were required to leave.
(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 abode 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), (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)23A; or
(b) regulation 21B(2), where that decision was taken in the preceding twelve months."

In short, in this particular case, per regulation 15A(2), it was incumbent on the Respondent to satisfy four conditions: that he is the primary carer of the relevant EEA national; that the relevant EEA national is aged under 18 years; that the relevant EEA national is residing in the United Kingdom as a self-sufficient person; and, finally, that the relevant EEA national would be unable to remain in the United Kingdom if the primary carer were required to leave.

The Impugned Decision

3. In the application for his derivative residence card, the Respondent identified the relevant EEA national as a British citizen child born on 07 May 2012 (hereinafter "the child"). He described their relationship as that of father/son. In response to the question "Are you the only primary carer for the EEA national child ??" he stated "No". He identified the other primary carer as his wife, the mother of the child. The Respondent had lived in the United Kingdom for almost five years when making his application.

4. In the Secretary of State's decision, the first reason given for refusal was that the Respondent had failed to demonstrate the availability of the necessary funds to sustain the child or the existence of an income from another source. The second reason proffered was that the child would be able to remain and reside in the United Kingdom with her mother in the event of the Respondent's departure.

Decision of the FtT

5. The FtT, in allowing the Respondent's appeal, recorded his evidence that his wife was working and he cared for the child. This involved playing, outings, watching television "and so on". Further, he claimed that he "? spent the majority of his time with the child and they had a very close relationship". The Judge also adverted to evidence that the child's mother is in full time employment. The Judge made a specific finding that there was adequate sickness insurance and adequate maintenance funds regarding the child. Next, the Judge found that the Respondent's departure from the United Kingdom would give rise to all three family members leaving. This is followed by the conclusion:
"Having considered all the evidence before me, I am satisfied that the Appellant is the primary carer of the child and that there are sufficient resources available to sustain the child and the Appellant in the United Kingdom. I accept that the child would be unable to remain in the United Kingdom in the event that the Appellant returned to China."

The appeal was allowed accordingly.

6. The grounds of the Secretary of State's appeal place emphasis on the first and fourth of the four statutory requirements summarised in [2] above. I shall consider each of these issues in turn.

The Primary Carer Issue

7. The definition of "primary carer" in regulation 15A(7) has two components. First, the person concerned must be a direct relative or a legal guardian of the person concerned. This is satisfied by the father/son relationship in the present case and is not in dispute. Second, the father must demonstrate that he has "primary responsibility" for the care of his son. The gravamen of Mr Duffy's argument was that this is a case of equally shared care. It was argued that even though the mother is in full time employment, she nonetheless provides a certain quantum of care for the child.

8. This is primarily a factual matter in respect whereof the FtT makes no specific finding. However, I consider that it can be readily inferred from its express findings and conclusions that the FtT was satisfied that, and so found, that the Respondent is the child's dominant carer.

9. More generally, the provisions of regulation 15A invite reflection on the terms "primary". "responsibility" and "care". This is why I have couched the "primary responsibility" criterion as primarily, but not exclusively, a question of fact: I consider this to be a question of mixed fact and law. While these terms are undefined, I consider that they are unsophisticated and uncomplicated. They import, firstly, the notion of more than one carer of the person concerned. There could, in principle, be two or more such carers. It does no violence to the statutory language to hold that in cases where there is no finding of equally shared care, the primary carer is the person with main responsibility, in fact rather than in theory, for the care of the child concerned: the person who actually attends to the bulk of the care tasks pertaining to the recipient. "Responsibility" denotes the actual provision of services et al, rather than any legal duty to do so. The word "care" is plainly of wide scope and embraces a broad spectrum of services, assistance, support and supervision. In any case where it is found that there is a primary carer, who does not share equally with another the responsibility of caring for the person concerned, any other carer of such person is, by definition, providing lesser, secondary care services.

10. Having regard to the facts found in the present case, duly augmented by appropriate inferences, the Respondent is plainly the primary carer of the child concerned, while his spouse, the child's mother, has the role of secondary, or subsidiary, carer. It follows that the FtT committed no error of law as regards regulation 15A(4A)(a).

The Forced Departure Issue

11. There is now ample and authoritive guidance on the correct approach to the words "would be unable to reside in the UK or in another EEA State" in regulation 15A(4A)(c). The derivation of these words is traceable to the decision of the CJEU in Zambrano v Office National de l'Emploi [2012] 2 WLR 886 and, specifically, the passage in [44] wherein the Grand Chamber spoke of a situation wherein the EU citizen children concerned "would have to leave the territory of the European Union ?". Later, in Dereci and Others (European Citizenship) [2011] EUECJ C-256-11, the CJEU expressed itself in essentially the same terms, at [66] -
"?.. situations in which the Union citizen has, in fact, to leave ?.."

The overarching criterion is, of course, that of the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizenship of the Union. In Harrison (Jamaica) and AB (Morocco) v SSHD [2012] EWCA Civ 1736, the issue of forced removal arose again, in a case where the Court of Appeal decided that nothing short of forced removal of the EU citizen from the EU will suffice to engage the Zambrano principle: see [63].

12. In a notable contribution to the jurisprudence belonging to this field, the Upper Tribunal, in its recent decision in Ayinde and Thinjom (Carers - Regulation 15A - Zambrano) [2015] UKUT 00560 (IAC) stated, with reference to Zambrano at [45]:
"On a proper reading of the decision of the Court of Justice, however, it was not an assumption that the Court was making but a finding of fact or a prediction of what would inevitably occur."

In [48] - [49], it was held that there is no test of reasonableness. The correct test, rather, is whether the EU citizen concerned would leave the Union.

In pithy terms, the test is -
"? whether the child would, as a matter of practicality, be unable to remain in the UK".

See Hines v London Borough of Lambeth [2014] EWCA Civ 660, at [23], per Vos LJ. The learned Lord Justice added that this will require a consideration of, amongst other matters, the impact which the removal of the primary carer would have on the EU citizen child and any alternative care available for the child.

13. Having regard to the findings of the FtT, both express and implicit, this test is plainly satisfied in the present case, with the result that the FtT has not lapsed into any error of law. It's key finding is that the refusal of the application by the Respondent (the father) for a residence card would result in the family in its entirety leaving the Union. As noted above, more extensive findings by the Judge would have been preferable. However, based on the express findings made, coupled with those which can reasonably be inferred, I consider that the Judge's conclusion relating to the forced departure issue cannot be impugned in law. In short, he found that the impugned decision of the Secretary of State would result in both parents leaving the United Kingdom and that, by virtue of age and family circumstances, their EEA national child would be compelled to accompany them to their country of origin, China. This finding cannot be impugned as erroneous in law.

Decision

14. For the reasons elaborated above, the decision of the FtT suffers from no error of law. I dismiss the appeal and affirm the decision of the FtT.

Bernard McCloskey

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 30 October 2015