13th December 2017
Julia Smyth, instructed by the Government Legal Department, successfully represented the Secretary of State for the Home Department (“SSHD”) in two of the appeals, concerning the parents of British citizen children; David Blundell, of Landmark Chambers, successfully represented SSHD in the third, concerning the primary carer of an adult British citizen. The judgment is reported as Patel v SSHD; SSHD v Shah and Bourouisa  EWCA Civ 2028.
The Court of Appeal accepted SSHD’s argument that the CJEU’s recent judgment in Case C-133/15 Chavez-Vilchez & ors  3 WLR 1326 did not represent “any kind of sea-change” to the fundamental approach to be taken (para 74, per Irwin LJ) and that the test remained one of compulsion. Thus the correct approach, in a case involving a British citizen child, was to ask whether the situation of the child was such that, if the non-EU citizen parent left the EU, the British citizen would be unable to care for the child, so that the child would be compelled to leave (para 77). While consideration of respect for family life was a relevant factor, it could not be a trump card enabling a court or tribunal to conclude that a child would be compelled to leave because family life would be diminished by the departure of one parent (para 78); where the British parent was capable of looking after the child, there was no proper basis for a finding of compulsion (para 79). Similarly, in an adult case, the test remained one of compulsion (para 81).