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On appeal from: [2017] EWCA Civ 2028

These appeals raised common issues regarding the scope of the Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265 (“Zambrano”) principle which states that a non-member state national (“TCN”) parent of a European Union citizen child resident within the EU is entitled to reside in the EU.

Mr Patel is an Indian national who has no right to remain in the UK. He cares for his parents, who are British citizens. Mr Shah is a Pakistani national and primary carer of his British citizen infant son. His wife is also a British national.

The Supreme Court unanimously allowed Mr Shah’s appeal and dismissed Mr Patel’s appeal. The Court held that what lies at the heart of the Zambrano jurisprudence is the requirement that the EU citizen be compelled to leave the EU territory if the TCN, with whom the EU citizen has a relationship of dependency, is removed. Relying on KA v Belgium (Case C-82/16) [2018] 3 CMLR 28, the Court held that children and adults are treated separately and a TCN will only have a derivative right of residence by reference to a dependant relationship with an adult EU citizen in exceptional circumstances. On that basis, the Court held that Mr Patel’s appeal must fail because his parents would not be compelled to leave the UK.

In Mr Shah’s appeal the overarching question was whether the son would be compelled to leave with his father, who was his primary carer, because of his dependency on his father. In answering that question, the Supreme Court had to take into account the child’s bests interests and his relationship with each parent. The FTT found the son would be compelled to leave. That was held to be sufficient compulsion for the purposes of Zambrano and Mr Shah’s appeal was allowed.

For judgment, please download: [2019] UKSC 59

For Court’s press summary, please download: Court’s Press Summary

For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing please visit: Supreme Court website: 7 May 2019 morning session and afternoon session.