In the recently reported case of LS v SSHD (Article 45 TFEU – derivative rights)  UKUT 00426 (IAC) concerning the free movement rights of British citizens who live in the UK but travel frequently to other Member States of the EU for business purposes, the Upper Tribunal held that a third country national family member of such British citizens may be able to establish a derivative right of residence under Article 45 of the TFEU.
Ultimately in this case, it was found that two British citizens would be realistically in danger of being unable to continue their employment in the UK which required them to travel frequently in the EU should their family member, a third country national, be unable to provide childcare.
New Derivative Right
This is a significant step in the interpretation of EU rights to free movement in the UK. The derivative right which is established by this judgment sets a precedent in upholding the rights of British citizens to exercise free movement rights in the EU.
The appellant in this case is a Russian national who entered the UK for the purpose of visiting her daughter and son-in-law, both British citizens, who had recently had their first child. The employment of both British citizens required them to travel very frequently to other EU countries. Several months into the appellant’s visit, when her daughter was looking to return to work but struggling to make alternative childcare arrangements, it became evident that the appellant’s presence was indispensable due to the child’s complex care needs. Without the appellant fulfilling the role of caring for her grandchild, neither her daughter nor her son-in-law could continue to travel as required by their respective employments.
The Upper Tribunal accepted the position set out in the ECJ’s judgment in S & G (C-457/12)(S v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v G), that a third country national could establish a derivative right of residence in the Member State of which their family member is a national, if they meet the following criteria:
- They are a family member of a Member State national within the terms of the Citizens’ Directive
- Their family member must be exercising treaty rights (travelling regularly to other Member States for professional purposes falls within the scope of exercising treaty rights under Article 45 of the TFEU)
- If it were not for the presence of the third country national family member, an absence of adequate childcare for the child of the Member State national would discourage them from exercising treaty rights
The Upper Tribunal noted particularly the threshold of the requirement that the British citizen would be dissuaded from exercising treaty rights.
In many such cases, it would clearly be preferable for the child to be cared for by a family member rather than any alternative such as a nanny or au pair, not least because it would be in the best interests of the child. However, it was held that this would not be enough to establish the dissuasive element. The Tribunal would need to undertake a wide evaluative assessment of the particular childcare needs. Moreover, adequate and reasonable steps would need to have been taken to obtain alternative childcare. The interference with the British citizen’s exercise of treaty rights must be real and there must be a causal link between the absence of adequate childcare and such interference.
Reported so soon before the UK is expected to leave the EU, this judgment throws up an interesting point regarding the current rights of British citizens which are afforded by EU free movement.
It is difficult to conceive of domestic UK legislation upholding the rights of British citizens to undertake professional activities abroad in order to maintain their UK employment, where they are at risk of being discouraged from doing so by difficult family circumstances, such as an absence of adequate childcare arrangements.
It is suggested that perhaps some more progressive immigration provisions will be required in future to address the problem that British families may face an economic crisis or be prevented from engaging in an increasingly global workplace in order to uphold the safety or security of their children. Perhaps these measures are needed even to provide sufficient motivation for such British families to continue living in the UK.
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