UK: First Tier Tribunal erred in assessing a derivative right of residence for third country national

Tuesday, July 14, 2020

On 14 July 2020, the Upper Tribunal (Immigration and Asylum Chamber) published its judgment ([2020] UKAITUR EA041492019) determining whether the First Tier Tribunal (FTT) made an error of law in rejecting an application for a derivative residence permit.

The applicant is an Algerian national who entered the UK in November 2018 with an EEA family permit to reunite with his British citizen daughter. He later applied for a derivative residence card as a primary carer for his daughter, which was rejected by the Secretary of State and later by the FTT. The applicant argued that since arriving in the UK, he had regular contact with his daughter. Moreover, his ex-partner claimed that she would not be able to cope with parental duties alone and had urged the applicant to join her in the UK. He argued further, inter alia, that the FTT had failed to consider the totality of evidence and had incorrectly applied a Court of Appeal’s ruling stating that a derivative right of residence must be a last resort.

The Upper Tribunal (UT) first observed that the Supreme Court ruling in Patel and Shah, applying the CJEU ruling in Zambrano, which recognised the derivative right of residence to a person who relies on the relation with their British citizen child. Indeed, the Supreme Court’s ruling makes clear that a derivative right of residence is a practical test to determine a child’s compulsion to leave the UK in the event that a parent is not allowed to remain. However, this compulsion to leave arises due to an established relationship of dependency, rather than a ‘primary carer’.

The UT referred to the previous case law of the CJEU, which established that if a parent in such a position were to leave, the Court must consider, inter alia, the best interests of the child, their age, and the potential risks in the event of separation. Indeed, these factors and the decision of the Supreme Court in Petal and Shah were never considered. Moreover, there was evidence that the applicant’s ex-partner would be unable to cope alone and would likely leave the UK with him and her child. As a result, the UT concluded that the FTT materially erred in law by failing to approach the issue in light of the Supreme Court’s recent findings. The decision of the FTT is therefore set aside and the case remitted for a new hearing.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Dependant (Dependent person)
Family member
Residence document