Supreme Court quashes Home Office bid to deport father

16 December 2019

  • Judges uphold appeal against Home Office attempts to deport a father who is primary carer for his child
  • In same hearing judges deny appeal against Home Office order to deport son who cares for his disabled parents
  • Liberty intervened in case which could mean the Home Office never tries to separate parents and children in this way again

Supreme Court judges today upheld a father’s appeal against Home Office attempts to deport him despite the fact he is the primary carer for his British child.

The ruling will help define the rights of carers who are non-British nationals who wish to stay in the UK to look after their children.

Adil Shah, the claimant, is a Pakistani father who provides primary care for his British child while his British wife works full time. The Home Office had argued he had no grounds to remain as the child’s mother could look after the child instead.

Liberty intervened in the case, which was joined to that of a second claimant Nilay Patel, who is the primary carer for his elderly British parents. The judges denied the appeal in the second case, in which the Home Office had argued social services could replace the care Patel provides.

The case tested the limits of the Zambrano principle under EU law, which gives carers “derivative residency” rights, where their removal would mean that EU nationals in their care would be forced to leave the EU.

Liberty intervened, arguing that the Home Office’s actions disregard UK and international law on the rights of children and the right to family life, and its own guidance on child safeguards (in the Shah case), and UK and international law on the rights of the elderly and disabled citizens (in the Patel case).

Lara ten Caten, Liberty lawyer, said:

“This is a victory for children’s rights to stay with their parents. The Home Office‘s attempt to deport a father and primary carer was not only cruel it was counterproductive. The Supreme Court decision hopefully means the Home Office will not try to separate families in this way ever again.

“It’s devastating that in the same hearing a son lost his appeal and will be torn from his disabled parents who depend on his care.

“This was not just about the rights of carers who have built a life here, but the rights of the people who need them to live their lives in the UK with dignity and stability.

“These cases are stark examples of the human cost of the Government’s cruel hostile environment. We need an immigration system that treats everyone with humanity and dignity, and protects the rights of children and disabled people, as well as their carers.”

Background to the case

Nilay Patel v Secretary State for the Home Department; SSHD v Adil Shah

Both claimants, Patel and Shah, appealed Court of Appeal decisions as to their right to reside in the UK. Both are the primary carers for family members who are British citizens.

Adil Shah, Lincoln’s Solicitors

Mr Shah is a Pakistani national whose wife and child are British nationals. He is the primary carer for his child, while his wife works full time. In March 2014, the Home Office rejected his application for a derivative residence card. The Home Office argued that if he was removed from the UK his child would not be compelled to leave because the child can remain in the UK with his mother. Alternatively, the Home Office say that Mr Shah’s wife and child could choose to follow him to Pakistan if they wanted to remain together.

The First-tier Tribunal upheld Mr Shah’s appeal against the Home Office’s decision. The Home Office appealed this to the Upper Tribunal. Both tribunals found that if Mr Shah is removed his wife would be unable to support the child without accessing public funds, she would follow him to Pakistan and the child would be compelled to leave as well.

The Home Office appealed this to the Court of Appeal, which allowed the Home Office’s appeal in December 2017.

Nilay Patel, represented by Connaughts Solicitors

Mr Patel is an Indian national who arrived in the UK on a student visa and overstayed to take care of his elderly British parents, who had health problems including end-stage kidney disease. In January 2015, the Home Office rejected his application for a derivative residence card.

The First-tier and Upper Tribunals found that Mr Patel is his father’s primary carer, but accepted the Home Office’s argument that his care could be replaced by social services. The Court of Appeal dismissed Mr Patel’s appeal in December 2017.

The two cases were joined because they test the scope of the Zambrano principle. This states that a third-country carer of an EU national is entitled to the right to reside and work in that state, if their removal would compel the EU national to leave the EU.

Liberty’s intervention

The Supreme Court granted Liberty permission to intervene in the case. Liberty believes there are significant statutes and principles of UK, European and international law that had not been considered in the proceedings thus far. The intervention is intended to ensure that the court is informed of these arguments so that it can come to a decision that protects the rights of the claimants and the people in their care, and fully reflects UK law.

We argued that the Court of Appeal did not in either case place adequate weight on important human rights concerns, including those protected by the UN Conventions on the Rights of the Child and the Rights of Persons with Disabilities and the EU Charter on Fundamental Rights. Caoilfhionn Gallagher QC, Antonia Benfield and Zoe Harper of Doughty Street Chambers acted for Liberty.

The judgment is available here.

Contact the Liberty press office on 020 7378 3656 / 07973 831 128 or pressoffice@libertyhumanrights.org.uk

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