Velaj (EEA Regulations – Interpretation, Reg 16, Zambrano) Kosovo: UTIAC 3 Jun 2021

(1) In considering a piece of legislation designed to implement European law, a purposive construction should be adopted as set out in Marleasing S.A v LA Commercial Internacional de Alimentacion S.A. [1992] 1 CMLR 305 and applying the principles set out in British Gas Trading Ltd v Lock and Anor [2016] EWCA Civ 983 at [38].
(2) Where implementing legislation goes beyond what is required by a Directive or to ensure compliance with rulings of the Court of Justice, there is no imperative to achieve a ‘conforming’ interpretation, but a careful analysis must be undertaken to determine if it was intended that the implementing legislation was to go beyond what flows from the Directive; in any event, the same means of construction set out in (1) must apply.
(3) On that basis, in construing reg. 16 (5) of the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’), a purposive approach must be followed, bearing in mind also that the question of whether a child would be compelled to leave is a practical test to be applied to the actual facts and not to a theoretical set of facts (Patel v SSHD) [2019] UKSC 59 at [30] (applying Chavez-Vilchez [2017] EUECJ C-133/15). That is a necessary corollary of the use of ‘unable’ in reg. 16(5).
(4) In order to meet the requirements of reg 16(5), the key issue is inability to reside in the United Kingdom which requires a detailed consideration of the circumstances of both carers.
(5) The EEA Regulations were revoked on 31 December 2020. Schedule 3 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020/1309) sets out those parts of the EEA Regulations preserved for immigration (but not social security) purposes; reg.16 is not one of the provisions preserved.
[2021] UKUT 235 (IAC)
Bailii
England and Wales

Updated: 12 October 2021; Ref: scu.668133