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  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  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  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 British citizen] would be unable to reside in the United Kingdom or in another EEA State if the person [the primary carer of the British citizen] left the United Kingdom for an indefinite period.
On behalf of the appellant, it was argued that Regulation 16(5)(c) could only be construed by its literal, ordinary and natural meaning, which had been adopted by the FtT judge. According to that, the decision-maker must determine whether the British citizen would be unable to reside in the UK on the purely hypothetical premise that their primary carer (or both joint primary carers) will leave the UK for an indefinite period. That reflected a deliberate policy choice to preclude any factual inquiry as to whether the primary carer would in reality have to leave the UK. The factual inquiry was limited to the question whether the British citizen would be unable to reside in the UK. Essentially, only if there was another person who would care for the child in the absence of both primary carers, would that question be answered negatively. It was accepted that this interpretation went further than what was required by Article 20 TFEU and the Zambrano jurisprudence, but it was within the vires of the Member States to implement EU law more favourably for individuals.
On behalf of the Secretary of State, it was argued that the Zambrano jurisprudence required a meaningful factual inquiry into the test of compulsion even in the circumstances of joint carers, as ultimately the question would be whether the child would be compelled to leave the UK if one of the carers were denied derivative rights. On that basis, regulation 16(5)(c) should be given a purposive construction as there was plainly no intention on Parliament's part to create rights that were wider than Zambrano rights.
Decision and Reasoning
Lady Justice Andrews, with whose judgement the remaining judges agreed, concluded that the interpretation of regulation 16(5)(c) does not import an assumption but requires consideration of what would happen to the child in practice.
Andrews LJ considered that the wording of the regulation allowed for two interpretations: "in the event that the person [in fact] left the UK for an indefinite period" or "on the hypothesis that the person will leave the UK for an indefinite period (regardless of whether in fact he would do so)". The former was found to be the more natural interpretation.
That interpretation was also found to be consistent with the intention to give effect to Zambrano rights, which required a nuanced analysis of compulsion and not of a hypothetical question. The alternative would create a new species of purely domestic derivative rights and that could not have been the intention of the legislator. The previous iteration of the regulations was found to support this conclusion.
It was further found that this construction of regulation 16(5)(c) was not inconsistent with the judgement in Akinsanya v Secretary of State for the Home Department  EWCA Civ 37, analysed in my previous article. The Akinsanya judgement involved regulation 16(7) and the definition of "exempt person". The Secretary of State's submission that regulation 16(7) should be construed in accordance with the intention to implement EU law and not to accord broader derivative rights was rejected. The language of regulation 16(7) was too clear to allow it to be construed as covering persons with limited leave to remain. Andrews LJ stated that the matter of how the requirements of regulation 16(5) could be satisfied by a primary carer who had limited leave to remain was not in issue in Akinsanya and the arguments regarding the interpretation of regulation 16(5)(c) would have had no bearing on the construction of regulation 16(7), as that related solely to a "threshold barrier".
The Court of Appeal found that the UT's interpretation of regulation 16(5)(c) had been correct and that it required a factual and not hypothetical, let alone counterfactual, inquiry into whether the primary carers would leave the UK indefinitely. The appeal was dismissed.
It is not difficult to accept that the language of regulation 16(7) is clearer than that of regulation 16(5)(c). However, it is doubtful that the "natural" meaning of the latter is that which was favoured by the Court. The language of regulation 16(5)(c) involves a conditional clause: "if the person left the UK... BC would be unable to reside...". This is a type 2 conditional clause, categorised as such on account of its structure: "if+past simple (left),... would/wouldn't +infinitive (would be unable)". Type 2 conditional clauses describe hypothetical or imaginary situations. Conversely, type 1 conditional clauses describe likely or possible situations. Those are structured as follows: "If + present tense,...will/won't + infinitive". As such, purely grammatically, the natural meaning of regulation 16(5)(c) would be that which was argued on behalf of the appellant, namely: on the hypothesis that the person will leave the UK... the British citizen would be unable to reside in the UK.
The factual inquiry as to whether that would be the actual consequence, if the hypothesis came to be, would still be applicable, consistently with the Zambrano jurisprudence: whether the British citizen would in fact be unable to reside in the UK if the primary carers left the UK indefinitely would remain a fact-sensitive assessment. An interpretation that does not involve any hypothesis would require the regulation to be phrased: BC will be unable to reside... if the person leaves the UK.
In view of this, it is difficult to see how regulation 16(5)(c) can be interpreted so as not to provide broader rights than those afforded by EU law, without changing the wording of the provision or without adopting a purposive interpretation, as was the argument in Akinsanya in relation to regulation 16(7). In fact, the reasoning in Velaj that the Secretary of State could not have intended to create a new species of purely domestic derivative rights for someone who would never meet the Zambrano test sounds very familiar to the presumption against "gold-plating", argued on behalf of the Secretary of State and rejected by the Court in Akinsanya, correctly in my view.
However, whereas the Court's approach with regard to the interpretation of regulation 16(7) in Akinsanya was, in my opinion, correct, the flaws in its reasoning as to the interpretation of the Zambrano jurisprudence are highlighted further by the Velaj judgement.
In Velaj, an argument was made on behalf of the appellant that the criteria for the recognition of a derivative right could not be met by a sole primary carer with limited leave to remain, unless a hypothetical premise was accorded to the words "if the person left the UK for an indefinite period". If a carer already had limited leave to remain they would not, in fact, leave the UK for an indefinite period and the child would not be compelled to leave with them.
Andrews LJ saw the force of that argument. However, in response, she stated in her judgement that "the immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child." Andrews LJ also considered that a Zambrano carer whose limited leave is due to expire can make an application under regulation 16(5)(c) and succeed on the basis that they would have to leave the UK as soon as their limited leave expired and that the child would have to go with them.
In my view, this reasoning of Andrews LJ exposes exactly the flaws with the reasoning of the Court of Appeal on Ground 1 in Akinsanya, where it was concluded that the CJEU does not regard Zambrano rights as arising as long as domestic law accords to Zambrano carers the necessary right to reside (or to work or to receive social assistance). As I set out in the commentary of my previous article on Akinsanya, the CJEU rulings relied upon to reach that conclusion treated the existence of a domestic right of residence as simply another factor involved in the analysis of the compulsion test and not as a "threshold barrier" or an attribute resulting in a blanket exclusion. As shown by the judgement of Andrews LJ, whilst in many circumstances a person with limited leave to remain in the UK would not leave for an indefinite period, "it is possible to conceive of situations" in which, even with limited leave to remain in the UK, a primary carer would be unable to remain and the child would be compelled to leave. In my view, the approach of the Court in these two cases is inconsistent. The treatment of the question of whether a person has limited leave to remain or other right of residence derived under domestic law as a "threshold barrier" is wrong. The CJEU has treated that matter as relevant, although not determinative, of the ultimate question, namely whether the Union citizen would be compelled to leave the Union. The Supreme Court's guidance in Patel is consistent with that approach: whether a person has limited leave to remain is one part of the actual facts to which the practical test of compulsion is to be applied.
Given the Secretary of State's recent position that the definition of a "person with a Zambrano right to reside" should reflect the scope of EU law (found in Akinsanya to preclude entirely persons with limited leave to remain), rather than the wider scope of the 2016 Regulations, this matter has become of great importance. Hopefully the Supreme Court will be called to provide its view.
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