The claimant, a Kosovan national, settled in the United Kingdom. The Home Secretary refused his asylum claim but granted him exceptional leave to remain. His wife and children were British citizens and the spouses were joint primary carers of the children, the youngest of whom was a son aged 16. The claimant was refused citizenship due to his criminal record and he was subsequently convicted of smuggling cocaine and imprisoned until his release on licence. The Home Secretary made a deportation order against the claimant and remade a decision to refuse his human rights claim. He asserted a derivative right to reside under regulation 16 of the Immigration (European Economic Area) Regulations 2016. By regulation 16(5) of the 2016 Regulations a third country national had a derivative Zambrano right to reside if (a) he was the primary carer of a British citizen, (b) who resided in the United Kingdom, and (c) the British citizen would be unable to reside in the United Kingdom or another EEA state if the third country national left the United Kingdom for an indefinite period. The First-tier Tribunal (Immigration and Asylum Chamber), despite having been told by the wife that she would not move to Kosovo if the claimant was deported, allowed the claimant’s appeal having found that he had a derivative right to reside under regulation 16(5) because their son would be unable to reside in either the United Kingdom or another EEA state if both parents left the United Kingdom for an indefinite period. The Upper Tribunal (Immigration and Asylum Chamber) allowed the Home Secretary’s appeal and set aside the decision below having accepted that a purposive construction was applicable to legislation designed to implement EU law. The Upper Tribunal held that it was a necessary corollary of the use of “unable” in regulation 16(5)(c) that the question of whether a child would be compelled to leave was a practical test to be applied to the specific facts. That provision could not therefore be construed as requiring an entirely theoretical assumption of both primary carers leaving the United Kingdom. In re-making the decision on the claimant’s appeal against the refusal of his human rights claim having concluded that he did not have a derivative right of residence, the Upper Tribunal concluded that the gravity of his offending made his deportation proportionate notwithstanding the impact of his family and dismissed his appeal.
On the claimant’s appeal—
Held, appeal dismissed. Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016 required a focus on whether a British citizen dependent child would be “unable” to remain “if” their primary carer or carers left the United Kingdom. The word “if” required the decision-maker to consider the child’s position on the basis that something was actually going to happen and did not require that premise to be purely hypothetical, let alone counterfactual. The decision-maker had to ask themselves what in practice would happen to the child if that event occurred and it would make little sense to require them to make an assumption that the event would happen if it plainly would not. The natural interpretation of the words “if the person left the United Kingdom for an indefinite period” in regulation 16(5)(c) was “in the event that the person in fact left the United Kingdom for an indefinite period” and carried the necessary implication that the presumed event was realistic and not just theoretical. A purely hypothetical event could clearly have no impact in practice on the ability of the child or other dependent British citizen to remain in the United Kingdom. The question whether the dependent EU citizen would be unable to reside required a nuanced fact-specific inquiry and not a simple analysis of a hypothetical question, which meant an analysis of what was likely to happen to the child in reality if both primary carers were to leave the United Kingdom. That interpretation was consistent with the stated intention to give effect to Zambrano rights. To interpret the provision as requiring a hypothetical assumption would confer a new species of purely domestic derivative rights on someone who would never meet the Zambrano test in circumstances where the departure of that person from the United Kingdom would in practice have no effect upon the ability of the dependent British citizen to remain in the United Kingdom. The draftsman would not have intended such a consequence. To require the decision-maker to assume that both primary carers would leave the United Kingdom when one of them would undoubtedly remain also precluded a nuanced inquiry. Accordingly, regulation 16(5)(c) did not compel a decision-maker to make a purely hypothetical and counterfactual assumption when determining whether a person had a derivative right to reside in the United Kingdom (paras 15, 47–53, 70, 71, 72, 73).
Simon Cox and Pierre Georget (instructed by Malik & Malik Solicitors) for the claimant.
Colin Thomann (instructed by Treasury Solicitor) for the Home Secretary.