Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38990/2013

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice, Belfast
Decision & Reasons Promulgated
On 23 February 2017
On 8 March 2017

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

J S
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Miss M O’Brien, Presenting Officer
For the Respondent: Miss B Muldoon, Solicitor

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Hutchinson promulgated on 11 November 2015. That decision was set aside by Upper Tribunal Judge O’Connor in a decision promulgated on 23 August 2016. A copy of that decision is set out in the annex to this decision.
2. Since Judge O’Connor’s decision was handed down, the Immigration (European Economic Area) Regulations 2006 had been superseded by the Immigration (European and Economic Area) (Regulations 2016). These provide materially as follows:–
6.—(1) A person has a derivative right to reside during any period in which the person—
(a)is not an exempt person; and
(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).
…
(5) The criteria in this paragraph are that—
(a)the person is the primary carer of a British citizen (“BC”);
(b)BC is residing in the United Kingdom; and
(c)BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.
(6) The criteria in this paragraph are that—
(a)the person is under the age of 18;
(b)the person does not have leave to enter, or remain in, the United Kingdom under the 1971 Act;
(c)the person’s primary carer is entitled to a derivative right to reside in the United Kingdom under paragraph (2), (4) or (5); and
(d)the primary carer would be prevented from residing in the United Kingdom if the person left the United Kingdom for an indefinite period.
(7) In this regulation—
(a)“education” 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;
(b)“worker” does not include a jobseeker or a person treated as a worker under regulation 6(2);
(c)an “exempt person” is a person—
(i)who has a right to reside under another provision of these Regulations;
(ii)who has the right of abode under section 2 of the 1971 Act;
(iii)to whom section 8 of the 1971 Act, or an order made under subsection (2) of that section, applies; or
(iv)who has indefinite leave to enter or remain in the United Kingdom.
(8) A person is the “primary carer” of another person (“AP”) if—
(a)the person is a direct relative or a legal guardian of AP; and
(b)either—
(i)the person has primary responsibility for AP’s care; or
(ii)shares equally the responsibility for AP’s care with one other person who is not an exempt person.
…
3. The respondnet is the mother of BQ, a British national born on 6 March 2008. In March 2012 the respondent’s fiancé, the father of BQ, was killed in a motorbike accident in Thailand. BQ then went to the United Kingdom to stay with his grandparents and his mother applied for a visit visa to enter the United Kingdom which she did on 9 May 2012. Prior to the expiry of her visa in November 2012 she applied for a derivative residence card on 18 September 2012.
4. At present the respondent and her son live in a house which she owns. She supports herself and her son through her own earnings as the director and shareholder of companies that employ fifteen people.
5. While BQ has a close relationship with his grandparents, he is their only grandchild and unfortunately the grandmother has cancer which has now spread to her liver. She is currently cared for by her husband who had a coronary artery bypass, has osteoarthritis and too unwell to attend the hearing. It is said that they are unable to look after the child and there is nobody else to care for him if the respondent were to leave the United Kingdom.
6. The Secretary of State’s case has varied considerably throughout these proceedings. Initially the respondent’s case was that BQ was not British and the grandparents were the primary carers. At the hearing on 28 July 2014 the Secretary of State changed her position accepting that BQ is British but maintained the grandparents were primary carers. At the hearing on 3 November 2015 she changed the position yet again and accepted that the respondent is the primary carer of BQ but argued that BQ could remain with the grandparents as their medical conditions were not so serious as to prevent them caring for him. Finally, on 10 November 2016 the position of the Home Office changed yet again arguing that a removal decision against the relevant EEA national is a necessary precondition to invoke the principles set out in Zambrano. [2011] EUECJ C-34/09. There is a strong indication of the goalposts being moved each time the Secretary of State loses a point.
The Hearing
7. I heard resubmissions from both representatives, Miss O’Brien conceding that given the change in the Regulations and the decision of the Court of Appeal in Sanneh v SSHD [2015] EWCA 49 that the submission that a removal direction was a necessary precondition to exercising derivative rights was not sustainable.
Discussion
8. The Secretary of State was correct to concede that it is not a condition precedent to acquiring the benefit of the Zambrano ruling, and by necessary implication falling within the terms of the EEA Regulations which can of course be no more onerous, as not tenable. In its decision the Court of Appeal in Sanneh said as follows:–
21. I will take the first two main issues together. They both go to the nature of a person's status as a Zambrano carer. The issues are (1) when does the status arise? and (2) does it confer any right to social benefits?

22. As to (1), the choice is between the date ("the Last Date") when prohibited national measures are taken (or are imminent) and the time when the carer ceases to be liable to be removed, i.e. the first date ("the First Date"), from which the Zambrano carer ceases to be liable to prohibited national measures. This may be on the birth of the child or a later date, for example, the date on which any leave which the carer had to be within the jurisdiction expires.

23. The timing matters for two reasons. First, if the right to reside arises on the First Date, then, prior to 8 November 2012, Zambrano carers met the qualifying conditions for a number of benefits as they had a right of residence and therefore were no longer subject to immigration control. Second, if the right to reside arises on the First Date, this would mean, on their case, that at all material times they should be treated in the same way as EU citizens lawfully here.

24. In my judgment, for the reasons given below, the effective citizenship principle means that EU law confers a right to reside on a Zambrano carer from the First Date. As Elias LJ expressed the position in argument, the Zambrano carer has under EU law a positive right to work and reside in the member state in which the EU citizen child is resident, and a negative right not to have prohibited measures taken against him. I agree, though this may not be an exhaustive statement of the Zambrano carer's EU law rights.
9. The question then remains as to whether if the respondent were removed, the child would be compelled to leave Northern Ireland. This is clearly not a situation in which there are two parents. The situation has also moved on since the matter was before UTJ O’Connor, in that the grandparents’ health has deteriorated significantly.
10. It is I consider necessary to consider the more recent observations on the position of Zambrano carers set out in Rendon Marin [2016] EUECJ C-404/12 where the court held at [51]:–
51. However, a refusal to allow a parent, a third-country national, who is the carer of a minor child who is a Union citizen to reside with that child in the host Member State would deprive the child’s right of residence of any useful effect, since enjoyment by a child who is a minor of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his 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 judgments of 19 October 2004, Zhu and Chen, C‑200/02, EU:C:2004:639, paragraph 45, and of 10 October 2013, Alokpa and Moudoulou, C‑86/12, EU:C:2013:645, paragraph 28).
11. I accept on the basis of the evidence before me, and indeed this was not challenged by the respondent, that the only relations that BQ has in the United Kingdom who could care for him are his grandparents. It is unfortunate that their health has now deteriorated to such an extent that they are too ill even to attend court. Again that is not challenged by the respondent. On any view they are both seriously unwell, and I am not satisfied that they could now look after the child.
12. It appears to have been forgotten that in this case the grandparents taking care of the child would involve a fostering arrangement. That is because the grandparents do not have any parental responsibilities defined in law. Taking all these factors into account I am satisfied on the evidence that on the particular facts of this case the grandparents are no longer able to care for BQ given their own ill health. I am satisfied also that other than the respondent remaining in the United Kingdom to care for her son, the only alternative would be for him to be taken into foster care as the grandparents are unable to care for him. That cannot be in his best interests given what was held in Hines v Lambeth [2014] EWCA Civ 660 at 24.
13. Accordingly, I am satisfied in this case that all the requirements of the Rules are met. I am satisfied also that this has been the situation since the date of application given at all material times the respondent has been the primary carer of BQ.

SUMMARY OF CONCLUSIONS
1 The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2 I remake the decision by allowing the appeal of JS under the Immigration (EEA) Regulations 2016.
3 I direct that the respondent, Ms J S and her son be granted anonymity.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the respondent is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 6 March 2017

Upper Tribunal Judge Rintoul

ANNEX – ERROR OF LAW DECISION

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/38990/2013

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice, Belfast
Decision & Reasons Promulgated
On 2 August 2016

…………………………………

Before

UPPER TRIBUNAL JUDGE O’CONNOR

Between

Secretary of State for the Home Department
Appellant
and

J S
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr M Matthews, Senior Presenting Officer
For the Respondent: Mr S McTaggart, instructed by Madden & Finucane Solicitors

DECISION AND REASONS
Introduction
1. The Secretary of State for the Home Department (“SSHD”) is the appellant before the Upper Tribunal. I shall refer to Ms S as the claimant herein.
2. Underpinning these proceedings is a decision made by the SSHD on 30 August 2013 refusing the claimant’s application for a derivative residence card, such application being made on the basis that the claimant is a third country national upon whom a British citizen is dependent in the United Kingdom. In short, the claimant contended that she was the primary carer of her British citizen child (BQ).
3. The claimant appealed the SSHD’s decision to the First-tier Tribunal (“FtT”) and that appeal was dismissed by First-tier Tribunal Judge Fox in a decision promulgated on 25 August 2014. Judge Fox’s decision was thereafter set aside by the Upper Tribunal (Upper Tribunal Judge King) in a decision of 16 February 2015; Judge Fox having misunderstood the evidence before him. The appeal was remitted back to the FtT to be considered on a de novo basis.
4. The appeal came before First-tier Tribunal Judge Hutchinson on 3 November 2015, and was allowed in a decision promulgated on 11 November 2015. The SSHD now brings challenge to the decision of Judge Hutchinson, with the permission of First-tier Tribunal Judge Nicholson granted on 2 May 2016.
5. The SSHD’s grounds can be summarised thus:
(i) The FtT misdirected itself in law as to the requirements of Regulation 15A(4A)(c) of the Immigration (EEA) Regulations 2006;
(ii) Alternatively, the FtT failed to lawfully apply those requirements to the facts of the instant case;
(iii) Further, and alternatively, the FtT’s conclusion on the issue of whether the BQ would be unable to reside in the UK if the claimant were required to leave, is irrational.
Legal Background
6. Regulation 15A of the 2006 EEA Regulations materially reads:
“15A: Derivative Right of Residence
(1) A person (P) who is not an exempt person [the claimant is not an exempt person] and who satisfies the criteria in paragraph ...(4A)... 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 –
(i) he is the primary carer of a British citizen;
(ii) the relevant British citizen is residing in the United Kingdom; and
(iii) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.
(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 of that person’s care with one other person who is not an exempt person.”
7. Regulation 18A of the 2006 EEA Regulations requires the SSHD to issue a residence card upon application, production of a valid passport and proof that the applicant has a derivative right of residence
8. The Upper Tribunal considered the aforementioned provisions of the 2006 EEA Regulations in Ayinde & Thinjom (carers – reg.15A – Zambrano) [2015] UKUT 00560, the head note to which reads:
“(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. ...”
Discussion
9. In its decision the FtT correctly set out the relevant legal background, the burden and standard of proof and the issues in dispute. Thereafter, its decision reads:
“28. I have considered all the evidence in the round and I am satisfied, on balance, that on the facts of this case, that if the appellant had to leave the UK, her child would be unable to continue to reside in the United Kingdom.
29. I make this finding on the basis that I am not satisfied that her son would reside permanently with Mr and Mrs [Q] [the child’s grandparents who had previously taken care of the child]. I have considered as a primary consideration the best interests of the child.
30. I have taken into consideration that BQ lost his father when he was just 4 years old and therefore his mother is his sole surviving parent. Both the appellant and Mrs [Q] gave consistent evidence as to how difficult this has been for [BQ]. In all the circumstances it patently is in this child’s best interests to maintain the relationship with his mother as primary carer and for them to continue to live together. Although clearly the child’s best interests are not an overriding consideration, I am not satisfied that in these circumstances that the option of living with his grandparents would, in reality, allow [BQ] to remain in the UK.
31. Although I have preferred Mrs [Q’s] evidence that she could and would look after [BQ] if the appellant left the UK (despite what I accept are chronic long term health conditions affecting both Mr and Mrs [Q]), that is not the only question I must ask. The fact that there is an available carer for the child is not the key question. Although requiring a child to live with his grandparents is not quite as extreme as requiring a child to go into foster or other institutional care in order to continue enjoying their EU rights, in this case, given all the circumstances, particularly that the appellant is the child’s sole surviving parent, I am of the view that such separation and to effectively require BQ to break the relationship with his only remaining parent, would not be justified. There has not been, as contemplated in Ayinde, serious wrongdoing (or indeed any) on the part of the appellant that might justify such a separation.
32. In any event, I am satisfied on all the evidence that the appellant would not leave her son if she were required to leave and that she would take him with her to Thailand. ...
34. On balance, although the education in the UK is preferred by the appellant, it is clear that she would not be returning to a penniless existence in Thailand, given that I accept that her parents have been in a position to lend her substantial sums of money. Although I accept that the appellant and her son want to live in the UK and that the appellant wants her son to be educated in the UK, in my findings, if the appellant was faced with the choice of leaving her son with his grandparents to continue his education in the UK, or returning to Thailand and making their life there with the assistance of her parents, I accept her evidence that she would, albeit reluctantly, forego the benefits of his education and life in the UK and take her son with her to Thailand.
35. I have therefore examined all the evidence critically (and rely on my findings) and I have reached a clear finding on that evidence that the appellant would not leave her son behind and therefore he would be unable to reside in the UK or in another EU state if the appellant were required to leave.”
10. In Hines v London Borough of Lambeth [2014] EWCA Civ 660, Elias LJ (Ward and Pitchford LJJ agreeing) gave consideration to issue of the relevance of the child’s best interests to a decision as to whether the requirements of regulation 15A(4)(c) of the 2006 EEA Regulations had been met. In doing so the following was said in relation to the analysis that a decision maker must undertake when seeking to answer the question of whether the British citizen child would, as a matter of practicality, be unable to remain in the UK:
“23. The reviewer has to consider the welfare of the British citizen child and the extent to which the quality or standard of his life will be impaired if the non-EU citizen is required to leave. This is all for the purpose of answering the question whether the child would, as a matter of practicality, be unable to remain in the UK. This requires a consideration, amongst other things, of the impact which the removal of the primary carer would have on the child, and the alternative care available for the child.
24. There was much discussion in argument as to the kind of alternative care that might be required in order to avoid the conclusion that the child would be forced to leave. It would be undesirable, I think, for the court to lay down any guidelines in this regard, but it was, as I have said, common ground that an available adoption or foster care placement would not be adequate for this purpose. That is because the quality of the life of the child would be so seriously impaired by his removal from his mother to be placed in foster care that he would be effectively compelled to leave. I do not, however, think that all things being equal the removal of a child from the care of one responsible parent to the care of another responsible parent would normally be expected so seriously to impair his quality and standard of life that he would be effectively forced to leave the UK. Apart from anything else, he would, even if he did leave, still only have the care of one of his previously two joint”
11. It is clear from these passages that a rigorous and nuanced analysis as to the likely circumstances the British Citizen child would find himself in if the child’s primary carer were required to leave the UK, has to be undertaken in each case; in particular, there needs to be an evaluation of the nature and extent of any available alternative care and the likely impact the new care arrangements will have on the quality and standard of life of the child.
12. Such an analysis is absent from the FtT’s decision and in my conclusion it is therefore flawed by legal error. Although the reason for such error is not strictly relevant to my decision, it is nevertheless readily apparent from the FtT’s determination that it unlawfully treated the answer to the question of whether the claimant would be willing to allow BQ to remain in the United Kingdom as being determinative of the issue of whether BQ would be unable to reside in the United Kingdom if the claimant were required to leave, and thus failed to carry out the necessary analysis of BQ’s circumstances as a whole.
13. For the reasons set out above, I find that the FtT’s decision contains an error of law and that such error is capable of effecting the outcome of the appeal. I therefore set the FtT’s decision aside.
14. Given the lengthy history of this matter I have concluded that the decision on appeal should be re-made by the Upper Tribunal.

Notice of Decision
The FtT’s decision contains an error of law capable of affecting the outcome of the appeal and is accordingly set aside.

Directions
A. Any further evidence to be relied upon by the parties is to be filed with the Upper Tribunal and serve on the other party so that it is received no later than 21 days before the date of the next hearing.

Signed:

Upper Tribunal Judge O’Connor
2 August 2016