Introduction

The case of Velaj v Secretary of State for the Home Department ([2022] EWCA Civ 767) presented a pivotal examination of the interpretation of Regulation 16(5)(c) within the Immigration (European Economic Area) Regulations 2016. This regulation delineates the conditions under which a third country national, serving as the primary carer for a British Citizen—typically a child—can claim a derivative right to reside in the United Kingdom. Mr. Velaj, a Kosovo national and primary carer for his British citizen child, challenged the refusal of his derivative residence rights, invoking the principles established by European Union (EU) jurisprudence, specifically the Zambrano and Chavez-Vilchez decisions.

Central to this appeal was the interpretation of whether the condition stipulated in Regulation 16(5)(c)—that the British Citizen would be unable to reside in the UK or another EEA State if the primary carer(s) left for an indefinite period—should be assessed purely hypothetically or through a practical, fact-specific inquiry. The case also navigated the complexities introduced by subsequent amendments to the regulations and prior case law, making it a cornerstone in understanding the scope and limitations of derivative residence rights under UK immigration law post-Brexit.

Summary of the Judgment

The Court of Appeal, in delivering its judgment, upheld the refusal of Mr. Velaj’s derivative residence claim. The core issue was the interpretation of Regulation 16(5)(c). The appellant argued for a broader interpretation that went beyond the minimum rights guaranteed under EU law, suggesting that the regulation permitted derivative rights even when one of the primary carers might not necessarily leave the UK. Conversely, the Secretary of State for the Home Department (SSHD) contended for a narrower, more factual interpretation aligned strictly with established EU jurisprudence.

The appellate court dismissed Mr. Velaj’s appeal, agreeing with the Upper Tribunal's interpretation that Regulation 16(5)(c) necessitates a practical, fact-specific analysis rather than a purely hypothetical assumption. This means that for a derivative right to reside to be granted, it must be demonstrated with evidence that the British Citizen would indeed be unable to reside in the UK or another EEA State if the primary carer leaves for an indefinite period.

Consequently, since Mr. Velaj's situation did not meet the required threshold—given that his wife, as an exempt person and British Citizen, could continue to care for their child—the court concluded that the appellant did not satisfy the conditions for a derivative right to reside.

Analysis

Precedents Cited

The judgment extensively referenced key EU jurisprudence, notably the Ruiz Zambrano case (Case C-34/09) and its subsequent elaboration in Chavez-Vilchez (Case C-133/15). These cases established the "Zambrano rights," granting derivative residence rights to primary carers of EU citizen children if refusal would impede the child's ability to reside in the EU.

Additionally, the Supreme Court's decision in Patel v Secretary of State for the Home Department [2020] 1 WLR 228 was pivotal. Lady Arden JSC articulated that "the Union citizen would be compelled to leave Union territory if the TCN [third country national], with whom the Union citizen has a relationship of dependency, is removed." This case underscored that the test for compulsion is a practical one, focusing on actual circumstances rather than theoretical scenarios.

The appellate court also considered the Akinsanya ([2022] EWCA Civ 37) decision, which dealt with the scope of derivative rights under the EU Settlement Scheme. Although the primary issue in Akinsanya concerned whether derivative rights under domestic law could extend beyond EU-derived requirements, it reinforced the necessity of interpreting regulatory provisions in line with their intended purpose and existing legal frameworks.

Legal Reasoning

The court's reasoning hinged on the interpretation of the conditional clause within Regulation 16(5)(c). It concluded that the term "if the person left the United Kingdom for an indefinite period" should be understood as a realistic, fact-based scenario rather than a purely hypothetical one. This interpretation aligns with the intent to embody the principles set forth in Zambrano and Chavez-Vilchez, ensuring that derivative rights are only granted when the departure of the primary carer would have a substantive impact on the British Citizen's ability to reside.

The court rejected the appellant's argument that the regulation permits an assumption that both primary carers might leave, thereby extending derivative rights unnecessarily. Instead, it emphasized a nuanced, case-by-case analysis of whether the British Citizen would indeed be unable to reside without the presence of the primary carer(s).

This approach ensures that derivative rights under Regulation 16(5)(c) do not extend beyond what EU jurisdiction necessitates, thereby maintaining the integrity and purpose of the regulation within UK domestic law.

Impact

The decision in Velaj v SSHD solidifies the requirement for a fact-specific assessment in derivative residence claims. Future cases will look to this judgment as a precedent for interpreting "unable to reside" within Regulation 16(5)(c), ensuring that claims are grounded in actual circumstances rather than hypothetical possibilities.

Furthermore, this judgment clarifies the boundaries between EU-derived rights and domestic law, particularly post-Brexit, reinforcing that domestic interpretations must remain consistent with the established European jurisprudence underpinning derivative residence rights.

Immigration advisors and legal practitioners will need to meticulously assess the factual realities of each case, focusing on the tangible impact of a primary carer's departure on the British Citizen's residency rights, thus refining the application process for derivative residence claims.

Complex Concepts Simplified

Zambrano Rights

Zambrano rights originate from the CJEU's Ruiz Zambrano decision, asserting that if denial of residence rights to a third country national primary carer would force an EU citizen to leave the EU, this would contravene the EU citizen's rights under the Treaty on the Functioning of the European Union (TFEU). Essentially, it ensures that families are not unjustly separated due to immigration control.

Derivative Right to Reside

A derivative right to reside allows a third country national who is a primary carer of an EU citizen to live in the EU country based on the EU citizen's residency rights. This derivative right is contingent upon the criteria set in the relevant regulations, ensuring that such rights do not extend beyond what is necessary to protect the EU citizen's ability to reside.

Exempt Person

An exempt person refers to individuals who are not eligible to claim derivative residence rights under certain regulations due to holding specific statuses such as British Citizenship or Indefinite Leave to Remain (ILR). These individuals are excluded to prevent redundancy and ensure that derivative rights are allocated appropriately.

Primary Carer

A primary carer is someone who holds the primary responsibility for the upbringing and care of a dependent person, typically a child. In the context of immigration law, proving primary caregiving is essential for qualifying for derivative residence rights.

Regulation 16(5)(c)

Regulation 16(5)(c) stipulates that a third country national primary carer has a derivative right to reside in the UK if the British Citizen dependent would be unable to reside in the UK or another EEA State should the carer leave the UK for an indefinite period. The interpretation of this clause—whether it requires a factual determination or allows for a hypothetical assumption—is central to derivative residence claims.

Conclusion

The Velaj v SSHD judgment serves as a definitive guide in interpreting derivative residence rights under Regulation 16(5)(c). By emphasizing a practical, fact-dependent approach over hypothetical considerations, the court reinforced the necessity of aligning domestic regulations with foundational EU jurisprudence while ensuring that derivative rights remain purposeful and not overly expansive. This decision underscores the judiciary's role in maintaining a balanced approach to immigration law, safeguarding familial integrity without compromising regulatory frameworks.

Consequently, stakeholders involved in immigration law must approach derivative residence claims with a meticulous assessment of factual circumstances, ensuring that applications are substantiated by concrete evidence of dependency and the genuine inability of British Citizens to reside without the primary carer's presence. This judgment not only clarifies existing legal interpretations but also strengthens the framework within which derivative residence rights are granted, paving the way for more informed and precise adjudications in future cases.