Derivative Right to Reside: Court of Appeal Reinforces Objective Compulsion Test in Immigration (European Economic Area) Regulations

Introduction

The case of The Secretary of State for the Home Department v RM (Pakistan) ([2021] EWCA Civ 1754) delves into the complexities surrounding derivative rights of residence under the Immigration (European Economic Area) Regulations 2016. RM, a Pakistani national and the primary carer of his British citizen brother, A, appealed against the Secretary of State's refusal to grant him a residence card based on his derivative right to remain in the United Kingdom (UK). The crux of the appeal revolves around whether A would be compelled to leave the UK and the European Union (EU) if RM were to depart, thereby establishing a derivative right for RM.

Summary of the Judgment

Initially, the Secretary of State for the Home Department (SSHD) refused RM's application for a residence card, asserting that alternative care options were available for A. The First-tier Tribunal dismissed RM's appeal, but the Upper Tribunal Judge Bruce later overturned this decision, recognizing a derivative right for RM based on the potential compulsion for A to leave the UK without his care. The SSHD then appealed to the Court of Appeal, which ultimately allowed the appeal, setting aside Judge Bruce's decision. The Court of Appeal found that the Upper Tribunal Judge had erred in applying an objective test for compulsion, instead relying too heavily on subjective factors related to A's private life and the supposed lack of practical alternatives.

Analysis

Precedents Cited

The judgment extensively references landmark cases that shape the interpretation of derivative rights under EU law:

Ruiz Zambrano v Office national de l'emploi (Case C-34/09): Established that national measures cannot deprive EU citizens of the genuine enjoyment of their fundamental rights, including the right to reside.
KA and others v Belgium (Case C-82/16): Differentiated between dependency relationships involving EU children and adults, emphasizing that for adults, derivative rights are recognized only in exceptional circumstances where separation is impossible.
Patel v Secretary of State for the Home Department ([2019] UKSC 59) and Shah: Addressed derivative rights cases involving adult dependents, reinforcing the need for objective assessment of compulsion to leave.
MS (Malaysia) v Secretary of State for the Home Department ([2019] EWCA Civ 580): Clarified that the availability of state care does not automatically negate the need to assess dependency objectively.

Legal Reasoning

The core legal issue hinges on Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016, which provides for a derivative right to reside for individuals who are primary carers of EU citizens. The critical test involves determining whether the EU citizen would be "unable to reside" in the UK or another EU state if the carer left indefinitely, thereby compelling the EU citizen to leave.

The Upper Tribunal Judge Bruce had previously concluded that RM met these criteria, focusing on A's dependence and the lack of practical alternatives. However, the Court of Appeal found that the judge failed to apply an objective test for compulsion. Instead, the judge's assessment was unduly influenced by subjective factors, such as the impact on A's private life and his public roles, rather than an objective evaluation of whether all practical alternatives to RM's departure had been exhausted.

The Court emphasized that the test for compulsion is stringent and must be applied objectively, considering all relevant circumstances to determine if separation is practically inevitable. The judge's reliance on A's perceived lack of choice, without a comprehensive objective analysis, was deemed a material error.

Impact

This judgment underscores the necessity for objective evaluation in derivative residence cases, particularly those involving adult dependents. It reaffirms that subjective preferences or the desire to maintain certain aspects of an individual's private life cannot override the stringent criteria established for compulsion. Future cases will likely reference this decision to ensure that courts meticulously assess whether all practical alternatives have been considered and whether any form of separation is genuinely unavoidable.

Additionally, the ruling clarifies that while the availability of state-provided care is a relevant factor, it does not automatically negate the possibility of derivative rights. Each case must be assessed on its factual merits, ensuring that dependency is not understated based on the presence of care options.

Complex Concepts Simplified

Derivative Right to Reside

A derivative right to reside allows non-EU family members of EU citizens to live in an EU country based on their family relationship. This is contingent upon demonstrating that the EU citizen would be compelled to leave the EU if the family member were not allowed to reside.

Compulsion Test

The compulsion test is a legal standard used to determine whether an EU citizen would be forced to leave an EU country due to dependency on a non-EU family member. For adults, this test requires an objective assessment to establish that any separation would be unavoidable and that the EU citizen cannot reside independently without the carer.

Objective vs. Subjective Assessment

An objective assessment considers facts and circumstances impartially, without being influenced by personal feelings or opinions. In contrast, a subjective assessment relies on personal perspectives and experiences. The Court of Appeal emphasized the need for an objective approach in evaluating compulsion to leave in derivative residence cases.

Conclusion

The Court of Appeal's decision in The Secretary of State for the Home Department v RM (Pakistan) serves as a pivotal moment in the interpretation of derivative residence rights under EU law. By reinforcing the necessity of an objective compulsion test, the court ensures that derivative rights are granted only in truly exceptional circumstances where dependency is undeniable and separation is unavoidable. This judgment not only clarifies the legal standards required for derivative residence but also provides a robust framework for future cases, safeguarding the integrity of immigration regulations while balancing the rights of dependent individuals.