The Supreme Court allows the appeal of Mr Adil Shah from the Court of Appeal’s decision in Shah and Patel v Secretary of State for the Home Department  EWCA Civ 2028  2 All ER 1093.
Mr Shah, a Pakistani national, is the primary carer of his infant son, who is a British citizen. His wife also has British nationality. Mr and Mrs Shah and their son all live together. Mrs Shah is in full-time work outside the home to earn an income for the family. While she is at work, the son remains with Mr Shah, who has no right to live or work in the UK. If Mr Shah were to return to Pakistan, Mrs Shah would not remain in the UK but would accompany her husband to Pakistan, and the child would have no option but to go too. In those circumstances, the First Tier Tribunal and the Upper Tribunal in Mr Shah’s case found that the child would be compelled to leave Union territory and that Mr Shah was, therefore, entitled to a derivative residence card. The Court of Appeal came to a different conclusion. The Court of Appeal considered that Mrs Shah would be able to look after their son in the UK and so the requirement for compulsion to leave the UK was not satisfied.
On Mr Shah’s appeal, heard with another linked appeal, the Supreme Court considers the scope of the principle in Ruiz Zambrano v Office national de l’emploi (Case C-34/09)  QB 265 and Chavez-Vilchez v Raad van bestuur van de Sociale verbekeringsbank (Case C-133/15)  QB 103.
The Supreme Court holds that the Court of Appeal, wrongly, introduced into the question of whether the son was compelled to leave the fact that the mother’s decision to leave was her own choice, and that she, like her husband, would have been “perfectly capable of looking after the child”. The Supreme Court concludes that the Court of Appeal erred in law in holding that there was no question of compulsion.
The Supreme Court holds that in considering the question of compulsion, the court is required to take account, “in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium”. The Supreme Court adds that “the test of compulsion is thus a practical test to be applied to the actual facts and not to a theoretical set of facts”.
The Supreme Court holds that “the Court of Appeal was wrong to bring the question of the mother’s choice into the assessment of compulsion”. The Supreme Court concludes that “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”.
The Supreme Court, accordingly, allows Mr Shah’s appeal.
Zane Malik appeared for Mr Shah before the Supreme Court.
The Supreme Court’s judgment is here: https://www.supremecourt.uk/cases/docs/uksc-2018-0006-judgment.pdf
The press summary is here: https://www.supremecourt.uk/cases/docs/uksc-2018-0006-press-summary.pdf