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Kenya Law / Blog / Uncategorized: A non-member state national parent of a European Union (EU) citizen child resident within the EU is entitled to reside in the EU solely to avoid the EU citizen child being deprived of the substance of their Union citizenship rights on removal of the non-member state national parent from the EU.

A non-member state national parent of a European Union (EU) citizen child resident within the EU is entitled to reside in the EU solely to avoid the EU citizen child being deprived of the substance of their Union citizenship rights on removal of the non-member state national parent from the EU.

Patel v Secretary of State for the Home Department; Secretary of State for the Home Department v Shah [2019] UKSC 59

Supreme Court of the United Kingdom

Lady Hale, P; Lord Carnwath, Lord Briggs, Lady Arden and Lord Sales

December 16, 2019

Reported by Faith Wanjiku

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International Law – law of Treaty – Treaty on the Functioning of the European Union – citizenship of the Union – dependent union citizen- right of residencederived from the dependent Union citizen – best interests of a child – where a Union child citizen had one parent who was a third country national and the other a union citizen – where the parent who was a third country national whom the Union citizen child was dependent upon was required to leave the Union – whether a refusal to grant a derived right of residence to a third-country national parent of a child who was a Union citizen meant that that child was deprived of the genuine enjoyment of the substance of the rights conferred on him by that status as the child would be compelled to leave the territory of the European Union as a whole – Treaty on the Functioning of the European Union, article 20; Charter of Fundamental Rights of the European Union, article 24 International Law – law of Convention -rights of the elderly under the Union – right to lead a life of dignity and independence and to participate in social and cultural life – where a sick Union elderly person was required to remain in the EU while their primary care giver had to leave – whether a third-country national with no right to remain in the EU could invoke the Zambrano principle in requiring that the dependent union citizen accompany him to his country – Charter of Fundamental Rights of the European Union, article 25

Brief facts:

The case was on two appeals, the first being Mr Patel’s (1st appellant) who was an Indian national who had no right to remain in the UK. He cared for his parents, who were British citizens. He had been trained to help with his father’s kidney dialysis, and he cared for his immobile mother. The 1st appellant’s parents were reliant on him. The medication required for dialysis could not be available in India. The First-tier Tribunal (FTT) found that the 1st appellant’s father would not return to India with him; instead, he would continue to receive medical treatment in the UK, although that would not give him the same quality of life as the 1st appellant’s care. The 1st appellant was unsuccessful in invoking the Zambrano principle in the FTT, the Upper Tribunal (UT) and Court of Appeal. The second appeal was Mr Shah’s (2nd appellant). He was a Pakistani national. He was the primary carer of his British citizen infant son. The 2nd appellant’s wife was also a British national. They both lived with their son. The 2nd appellant’s wife worked full-time. Whilst she worked the 2nd appellant cared for their son. The FTT found that if the 2nd appellant were to return to Pakistan, his wife would not remain in the UK; she would accompany her husband to Pakistan. Their child would also leave the UK. As a result, the FTT and UT found that the 2nd appellant was entitled to remain. The Court of Appeal disagreed and held that the 2nd appellant’s wife could look after the son in the UK; the requirement for compulsion to leave the UK was therefore not satisfied. These two appeals raised common issues regarding the scope of the Ruiz Zambrano v Office national de l’emploi (Zambrano) principle which stated that a non-member state national parent of a European Union (EU) citizen child resident within the EU was entitled to reside in the EU. That was solely to avoid the EU citizen child being deprived of the substance of their Union citizenship rights on removal of the non-member state national parent from the EU.

Issues

i. Whether a refusal to grant a derived right of residence to a third-country national parent of a child who was a Union citizen meant that that child was deprived of the genuine enjoyment of the substance of the rights conferred on him by that status as the child would be compelled to leave the territory of the European Union as a whole.

ii. What was the scope of the right of residence as a derivative right derived from the dependent Union citizen?

iii. Whether a third-country national with no right to remain in the EU would invoke the Zambrano principle in requiring that the dependent union citizen accompany him to his country.

Relevant provisions of the law

Charter of Fundamental Rights of the European Union Article 7-Respect for private and family life Everyone has the right to respect for his or her private and family life, home and communications.

Article 24-The rights of the child

1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

Article 25

The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.

Treaty on the Functioning of the European Union Article 20

1. Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

a) the right to move and reside freely within the territory of the member states; …”

Held:

  1. What lay at the heart of the Zambrano jurisprudence was the requirement that the Union citizen would be compelled to leave Union territory if the non-member state national parent (TCN), with whom the Union citizen had a relationship of dependency, was removed. It was the role of the national court to determine whether the removal of the TCN carer would actually cause the Union citizen to leave the Union. In the instant case, the FTT found against the 1st appellant and concluded that his father would not accompany him to India. That meant that, unless there was adopted a different approach to compulsion, his appeal had to fail. There was no question of his being able to establish any interference with his Convention right to respect for his private and family life as he had failed already in that regard.
  2. Factors of relevance, for the purposes of determining whether a refusal to grant a derived right of residence to a third-country national parent of a child who was a Union citizen meant that that child was deprived of the genuine enjoyment of the substance of the rights conferred on him by that status, by compelling that child, in practice, to accompany the parent and therefore leave the territory of the European Union as a whole, included the question of who had custody of the child and whether that child was legally, financially or emotionally dependent on the third-country national parent.
  3. In order to assess the risk that a particular child, who was a Union citizen, might be compelled to leave the territory of the European Union and thereby be deprived of the genuine enjoyment of the substance of the rights conferred on him by article 20 of the Treaty on the Functioning of the European Union (TFEU) if the child’s third-country national parent were to be refused a right of residence in the member state concerned, it was important to determine, in each case at issue in the main proceedings, which parent was the primary carer of the child and whether there was in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities had to take account of the right to respect for family life, as stated in article 7 of theCharter of Fundamental Rights of the European Union (Charter), that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in article 24(2) of the Charter.
  4. The fact that the other parent, where that parent was a Union citizen, was actually able and willing to assume sole responsibility for the primary day-to-day care of the child was a relevant factor, but it was not in itself a sufficient ground for a conclusion that there was not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account had to be taken, in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium.
  5. The fact that the third-country national parent lived with the minor child who was a Union citizen was one of the relevant factors to be taken into consideration in order to determine whether there was a relationship of dependency between them, but was not a prerequisite. On the other hand, the mere fact that it might appear desirable to a national of a member state, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who did not have the nationality of a member state to be able to reside with him in the territory of the European Union, was not sufficient in itself to support the view that the Union citizen would be compelled to leave the territory of the European Union if such a right was not granted.
  6. The matters which the national court had to take into account when deciding whether the requirement for compulsion was fulfilled had regard to the child’s best interests and the extent of their ties to their mother, the relevant relationship of dependency on the mother was made out. There was no direct analogy with a case, such as the 2nd appellant’s appeal, where the family was living together. In that situation, where the TCN was the primary carer and the parent with whom the child had the relevant relationship of dependency and the Union parent would stay with them so as to keep the family together, it would be in the child’s best interests to remain with both parents. Because the 2nd appellant was the primary carer, the need for a relationship of dependency with the TCN was fulfilled. The quality of that relationship was under the jurisprudence of the Court of Justice of the European Union, a relevant factor in determining whether the child was compelled to leave the jurisdiction.
  7. The overarching question was whether the 2nd appellant’s son would be compelled to leave by reason of his relationship of dependency with his father. In answering that question, the court was required to take account, in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium. The test of compulsion was thus a practical test to be applied to the actual facts and not to a theoretical set of facts. The son would be compelled to leave with his father, who was his primary carer. That was sufficient compulsion for the purposes of the Zambrano test. There was an obvious difference between the situation of compulsion on the child and impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card. The Court of Appeal was wrong in the case to bring the question of the mother’s choice into the assessment of compulsion.
  8. The Court of Appeal made an error of law when it treated as determinative what could happen to the 2nd appellant and his wife’s son if the father left the UK, rather than what the FTT had found would happen in that event. In other words, it was not open in law to the Court of Appeal to hold that the 2nd appellant had no derivative right of residence because the mother could remain with the child in the UK even if the father was removed.

2nd appellant’s appeal allowed with the 1st appellant’s appeal being dismissed.

Relevance to the Kenyan situation

The UK judgment is jurisprudential to Kenya. The Constitution of Kenya, 2010 in article 13 (2) provides that citizenship may be acquired by birth or registration wherein citizenship by registration is provided in article 15. Article 16 provides for dual citizenship which a Kenyan citizen can be a citizen of another country without losing his citizenship by birth. That means that a Kenyan can be a citizen in the European Union and be in the same situation as the appellants. There is also the Kenya Citizenship and Immigration Act, No.12 of 2011. The Act provides for citizenship by in section 8 where it goes ahead to state in sub-section 1 that a citizen of Kenya by birth who acquires citizenship of another country is still entitled to retain the citizenship of Kenya. Section 11 provides for citizenship by marriage which is attained where a person is married to a citizen of Kenya for at least seven years and has attained residence status applies for the citizenship. There are also rights a citizen acquires as provided in section 22 which include the right to enter, exit, remain in and reside anywhere in Kenya. The judgment therefore develops jurisprudence touching on both national and international citizenship by clearly deciding onthe circumstances of the best interests of aEuropean Union (EU) citizen child with both a non-member state national parentand a European Union (EU) citizen parent and in the situation of a dependent Union citizen with a non-member state national care giver compelled to leave the EU.

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