JS v Secretary of State for Work and Pensions (ESA)

A derivative right of residence for a primary carer under regulation 15A(4) depends on the child meeting every condition in regulation 15A(3) of the Immigration (European Economic Area) Regulations 2006. The relevant employment is that of the child’s EEA-national parent, not that of a grandparent who is the child’s primary carer.

Article 10 of Regulation (EU) No 492/2011 likewise concerns the children of a Member State national who is or has been employed in the host state. Its reference to children does not extend to grandchildren. A grandparent’s past worker status therefore cannot found the child’s derivative right of residence where neither parent has worked in the United Kingdom.

The appellant, a Slovak national, claimed employment and support allowance in August 2013. The Secretary of State refused the claim because he lacked a right to reside in the United Kingdom. The First-tier Tribunal at Leeds dismissed his appeal on 4 December 2014.

The appellant and his wife were accepted to be the primary carers of two grandchildren, one of whom was in education in England. The appellant’s wife had previously worked in the United Kingdom. There was, however, no evidence that either grandchild’s parent had worked there.

On appeal, the central issue was whether grandparents who were primary carers could derive a right to reside from their own worker status under article 10 of Regulation (EU) No 492/2011 or regulation 15A of the Immigration (European Economic Area) Regulations 2006.

1. Appeal dismissed. The First-tier Tribunal had made no material error of law. Its decision upholding the refusal of employment and support allowance was not set aside.

2. Although the appellant and his wife could be treated as the grandchildren’s primary carers, the derivative right asserted arose, if at all, through regulation 15A(4) of the Immigration (European Economic Area) Regulations 2006. That provision required the child for whom they cared to meet all the criteria in regulation 15A(3) ([21]).

3. The relevant child had to be the child of an EEA-national parent and must have resided in the United Kingdom at a time when that parent resided there as a worker. The evidence did not show that either parent had worked or been employed in the United Kingdom. The condition in regulation 15A(3)(b) was therefore not met ([21]–[22]).

4. The wording “the child of an EEA national” and “the EEA national parent” could not be construed to include a grandparent. Regulation 15A distinguishes a primary carer’s relationship with the child from the separate requirement that the child’s parent be, or have been, a worker. A grandparent’s own employment was consequently immaterial ([22], [25]).

5. The same conclusion followed from article 10 of Regulation (EU) No 492/2011. Its reference to children of a Member State national employed in the host state did not extend to that national’s grandchildren. Nothing in the cited authorities under article 10 or its predecessor supported that wider reading ([23]).

The tribunal’s decision of 4 December 2014 therefore stood as the determinative decision.

• Upper Tribunal (Administrative Appeals Chamber): Dismissed the appellant’s appeal and held that the First-tier Tribunal had made no material error of law.
• First-tier Tribunal, Leeds: On 4 December 2014, dismissed the appeal against the Secretary of State’s refusal of employment and support allowance.
• Secretary of State: Refused the claim on 3 October 2013 on the basis that the appellant had no right to reside in the United Kingdom.