Supreme Court reaffirms the importance of considering the best interests of the child in Zambrano cases

In Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59, the Supreme Court considered the scope of the Zambrano principle under EU law, which gives primary carers a derivative right of residence, where their removal from the UK would mean that their EU national family members would be compelled to leave the UK and therefore the territory of the European Union if their family member is unable to remain.

The appeals were brought by two primary carers whose cases had been dismissed by the Court of Appeal on the basis that their EU national family members would be able to remain in the UK without them or, in the alternative, that any decision to leave the EU would be a question of choice and not compulsion.  Mr Adil Shah was a Pakistani national who lived in the UK with his wife and son, both British nationals, and was the primary for his young son as his wife worked full-time.  Mr Nilay Patel was an Indian national who was the primary carer for his elderly parents who had complex health problems. 

In allowing Mr Shah’s case, the Supreme Court reaffirmed the importance of considering the best interests of the child when deciding whether they would be compelled to leave the UK because of their dependency on their carer.  The assessment of their best interests must take account of all the specific circumstances, including their age, physical and emotional development, the extent of their emotional ties to each parent, and the risks to the child’s equilibrium of separation from their non-EEA national parent.  The Supreme Court also helpfully stressed that the test of whether an individual was compelled to leave the EU was a practical test to be applied on the actual set of facts rather than a theoretical set of facts, overturning the consideration by the Court of Appeal of choice in the assessment of compulsion. 

In cases involving the care of adults, the Supreme Court noted that a derivative right of residence will only be acquired where there are exceptional circumstances.  However, Mr Patel’s case was unsuccessful on its facts as it had not been shown that his parents would leave the UK if he was removed and therefore no compulsion to leave could be identified. 

Caoilfhionn Gallagher QC, Antonia Benfield and Zoe Harper were instructed by Lara ten Caten on behalf of Liberty who intervened in the proceedings.  Liberty’s response to the judgment is available here. Today’s judgment is available here and the Supreme Court press summary here.