Anthony Metzer QC and Sanaz Saifolahi appeared for the successful Appellant in the newly reported case of LS (Article 45 TFEU – derivative rights)  UKUT 00426 (IAC).
LS is a national of the Russian Federation and is the maternal grandmother and primary carer of S, a British National child. LS had originally entered the UK as a visitor. The parents of S are both British Nationals, who, in the course of their employment, travel extensively to other EU countries. As such, LS maintains the primary care responsibilities for S.
LS made an application for a residence card relying primarily on S & G (C-457/12) (S v Minister voor Immigratie, Integratie en Asiel, and Minister voor Immigratie, Integratie en Asiel v C) a judgment of the CJEU dated 12th March 2014. It was argued that in the course of their employment, the parents of S, primarily her father, travelled extensively within the EU and as such, LS was and had to be the primary carer for S. Alternative childcare was not a reasonable option for a number of practical reasons, including the nature and extent of the care required.
The SSHD refused the application, relying on Regulation 9 of the 2006 Regulations as it then was. LS appealed and the First Tier Tribunal allowed the appeal. The SSHD then sought permission to appeal to the Upper Tribunal, which was granted. The Upper Tribunal located a material error of law and reheard the appeal.
ISSUES IN THE APPEAL
As outlined in LS:
“This appeal concerns the circumstances in which a third country national who is a family member of a British citizen may be able to establish a derivative right of residence under Article 45 TFEU when the British citizen is living in the UK but travels to another Member State as part of his employment”
It was successfully argued that Article 45 TFEU applied, on the basis that the work patterns of S parents’ are such that alternative childcare provision, would be both unreasonable and impractical.
The head note states:
- In determining whether the absence of adequate provision for the childcare of the child of a Union citizen may be a factor capable of discouraging that Union citizen from effectively exercising his or her free movement rights under Article 45 TFEU, the Tribunal will need to undertake a wide evaluative assessment of the particular childcare needs in light of all relevant circumstances.
- It is necessary for an appellant claiming to have a derivative right of residence under Article 45 TFEU to establish a causal link between the absence of adequate childcare and the interference with the effective exercise by a Union citizen of his or her free movement rights, and the appellant will need to demonstrate, by the provision of reliable evidence, that genuine and reasonable steps have been taken to obtain alternative childcare provision.”
Despite not advancing the appeal under the EEA Regulations, it was successfully argued, by applying primary European law, that Article 45 TFEU expressly applied to these circumstances. The focus of the argument was not on the care that LS provides to S; rather, it was argued that unless LS can care for S, her parents, both British Nationals, would be discouraged from effectively exercising their Treaty Rights, on the basis that alternative childcare provision is neither practical nor reasonable in all of the circumstances.