Judgment on whether non-EU Carers should be allowed to stay in the UK to care for their British parents

18 Dec 2017, 43 mins ago

Last week the Court of Appeal delivered its judgment on the case of Patel vs. The Secretary of State for the Home Department. The judgment could prove to be very significant for future cases where non-EU children of sick and elderly British parents are attempting to gain the right to remain in the UK and continue to care for their parents. 

The appeal was put forward by Nilay Patel, an Indian National with British parents, who first entered the UK in 2010 on a student visa.  Since moving to the UK, Mr Patel has lived with his parents.  His parents are both sick, with his father suffering from final stage kidney disease and high blood pressure, and his mother having poor mobility due to bad knees. Mr Patel cares for both his parents. 

Student visas do not normally lead to Indefinite Leave to Remain (“settled status”) after a certain amount of time in the UK. Save in the case of the restrictive ten-year rule, all students are expected to leave the UK when their studies are completed, unless they are able to switch to a different category.

Before Mr Patel’s visa expired, he applied for settled status outside of the rules.  This application was refused.  There were a number of appeals and further applications.  In December 2014, Mr Patel applied for a Derivative Residence Card, claiming to be the primary carer of a British citizen – his father. Again, this was refused and Mr. Patel continued to appeal. 

Mr Patel’s application was based on the argument that he should have the right to remain in the UK and continue to care for his parents who are both British citizens and if he were to leave, his parents would follow him back to India – even though they would not receive the same level of care there. There is a previous judgment from another case that addresses such rights, known as Zambrano, rights.  This essentially states “the primary carer of a British citizen who is residing in the UK derives a right to reside under EU law if their removal from the UK would compel the British citizen to leave the European Union”.  

In Mr Patel’s case, the judgment concluded that although his parents may choose to leave the UK and follow him back to India, they were not compelled to do so.  The judgment stated that if Mr Patel were to leave the UK, the parents would receive adequate care from the state, which they are entitled to as British citizens and hence they were not compelled to leave, even though they may choose to do so. 

The test of whether the British citizen is compelled or chooses to follow the carer is a difficult one that is expected to be applied in all such cases.  The judgment highlighted a few examples of cases where it may be considered that a British citizen may be compelled to follow the carer. These included the situation where a family share a rare blood group and a blood transfusion may be required or when there is a significant psychological dependence, of a UK citizen on a non-EU resident, which stems from a well-known psychological condition.  The judgment highlighted that these were merely examples and not an exhaustive list.

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The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2017