LS v The Secretary of State for the Home Department

A third-country national family member of a Union citizen who resides in the citizen’s Member State of nationality may have a derivative right of residence under Article 45 TFEU where refusal would discourage the citizen’s effective exercise of free movement rights as a worker.

Where childcare is relied on, the Tribunal must make a wide evaluative assessment of the child’s particular needs and reasonably available alternative care. The appellant must prove, with reliable evidence, both genuine and reasonable attempts to secure alternatives and a real causal link between the lack of adequate care and interference with the worker’s free movement rights.

The appellant, a Russian national and grandmother of a British child, applied for a residence card. She contended that her childcare enabled her British son-in-law, who regularly travelled to other Member States for work, to exercise rights under Article 45 TFEU.

The Secretary of State refused the application. The First-tier Tribunal allowed the appeal in a decision promulgated on 11 December 2017. The Upper Tribunal found an error of law because the First-tier Tribunal had not adequately reasoned its conclusions or engaged sufficiently with S & G C-457/12, and remade the decision after receiving further evidence.

The central issue was whether refusal of residence to the appellant would discourage the worker’s effective exercise of Article 45 rights because adequate alternative childcare was unavailable.

1. The EEA appeal was allowed. The appellant had a derivative right to reside in the United Kingdom under Article 45 TFEU.

2. Applying S & G C-457/12, a derivative right may arise for a third-country family member where its refusal would discourage a Union citizen, who regularly travels to another Member State as a worker, from effectively exercising free movement rights. The appellant must establish that the Union citizen is exercising those rights and that refusal has a real dissuasive effect.

3. Childcare supplied by the third-country national may be material, but family preference alone is insufficient. The assessment requires close consideration of the child’s needs, including age, health, education, the parents’ employment and travel demands, and the reasonable availability of care from relatives or professional and informal providers. The appellant must provide reliable evidence of genuine and reasonable efforts to obtain alternatives.

4. There was no requirement that the appellant held full parental responsibility or was the child’s legal guardian. On the accepted evidence, the parents’ frequent, short-notice and sometimes simultaneous work travel created exceptional and extensive care requirements. Other family and friends could not meet them; an au pair was unsuitable; and the necessary live-in nanny arrangements were not reasonably available, having regard also to daily rest requirements.

5. The evidence established a direct causal link. Without suitable care, the son-in-law would be deterred from travelling to other Member States for work. This was not simply a preference for care by a family member. Refusal of the residence card would therefore interfere with his effective exercise of Article 45 rights.

• Upper Tribunal (Immigration and Asylum Chamber): Having found an error of law in its earlier decision promulgated on 27 July 2018, the Tribunal remade the decision and allowed the EEA appeal.
• First-tier Tribunal: Allowed the appellant’s appeal in a decision promulgated on 11 December 2017. The Secretary of State obtained permission to appeal.