LO v Secretary of State for Work and Pensions (IS)

A Union citizen who cannot satisfy the residence conditions in Directive 2004/38 may rely directly on Article 21 TFEU only in an exceptional case where proportionality fills a genuine legislative lacuna. There is no lacuna where the Directive has addressed the relevant position, including the distinction between registered family members and unmarried partners following relationship breakdown.

A derivative residence right for a primary carer requires evidence that refusing it impedes the child’s exercise of EU-law rights. A hypothetical possibility that children might move with their parent to another Member State is insufficient. Article 8 does not ordinarily impose a positive obligation to provide welfare support, absent extreme hardship.

The appellant, a Spanish national, lived in the United Kingdom with her British partner and their twins. After their separation, a Family Court interim residence order required the children to spend regular time with their father. The appellant claimed income support while she was not working or seeking work.

The Secretary of State treated her as a person from abroad with a nil applicable amount. The First-tier Tribunal held that she had no qualifying right to reside and dismissed her appeal. It found that she was not a worker, jobseeker, family member, extended family member, or a person with a derivative right.

On appeal, the Upper Tribunal considered whether proportionality under Articles 20 and 21 TFEU could confer a residence right; whether a derivative right arose through the children; and whether refusal of income support breached Article 8 of the Convention.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. The appellant had no right to reside which entitled her to income support.

2. The appellant could not meet the express conditions of Directive 2004/38. Proportionality may exceptionally fill a genuine lacuna in the Directive, as contemplated in Mirga v SSWP [2016] UKSC 1. It could not do so here. The Directive deliberately distinguishes family members, including registered partners, from unmarried durable partners. It also addresses post-termination rights of access to a child. A former unmarried partner therefore could not invoke Article 21 TFEU to override those conditions merely because domestic family law constrained her ability to leave with the children.

3. The appellant could instead have sought a right as a worker or jobseeker, subject to the applicable conditions. The domestic benefit regime recognised the caring position of lone parents, but the need to seek work did not make the Directive’s restrictions disproportionate.

4. No derivative residence right arose through the children. The evidence did not establish that, absent the Family Court order, the children would have moved to and resided in Spain by exercising rights under EU law. A purely hypothetical prospect of exercising free movement rights does not create the necessary EU-law connection. Nor would refusal of the appellant’s residence right compel the children to leave EU territory, as required by the Ruiz Zambrano line of authority.

5. The Charter did not assist. In any event, the arrangements maintained the children’s relationship and direct contact with both parents. Article 8 of the Convention was not infringed: the hardship arising from reliance on jobseeker’s allowance was well below the exceptional level at which Article 8 can require welfare support.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal’s decision of 5 June 2013 was upheld.
• First-tier Tribunal: held that the appellant had no qualifying right to reside and therefore no entitlement to income support.
• Secretary of State: on 1 May 2012, rejected the income-support claim by treating the appellant as a person from abroad with a nil applicable amount under the Income Support (General) Regulations 1987.