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Supreme Court considers derivative right to reside as primary carer

Stuart
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New Supreme Court case Patel v Secretary of State for the Home Department [2019] UKSC 59 considers scope of Zambrano principles in two appeals -

- in the case of adult dependency in Patel, the Court rules against the claimant and finds CJEU case law does not relax the compulsion test in the case of adults, so derivative rights will only be established in ‘exceptional circumstances’ that were not present in this case;

- in the case of Shah, the Justices overturn the Court of Appeal’s decision that the child of Mr and Mrs Shah would not be compelled to leave the EU if his primary carer father could not derive a right to reside -

‘… the Court of Appeal made an error of law when it treated as determinative what could happen to Mr and Mrs Shah’s son if the father left the UK, rather than what the FTT had found would happen in that event. In other words, it was not open in law to the Court of Appeal to hold that Mr Shah had no derivative right of residence because the mother could remain with the child in the UK even if the father was removed.’