The Upper Tribunal has held in the case of LS (Article 45 TFEU – derivative rights) [2018] UKUT 426 (IAC) that the family member of a cross border worker within the EU — one who lives in one EU country but works regularly in another — can derive a right of residence from Article 45 TFEU if required for childcare by the cross border worker. The determination is based on the little-known case of C-457/12 S & G.

On the facts, this meant the foreign national mother / mother-in-law of a naturalised British couple was allowed to remain in the UK under EU law because the couple were both traveling regularly to the EU for work and the mother was needed for childcare. The family had no other reasonable childcare possibilities available to them and the tribunal was not willing to find that the mother should give up her job to do the childcare.

Even many lawyers familiar with EU law will be thinking, like I did, “what is the legal basis for that, then?” To cut a long story short, in an old and rather better-known case called C-60/00 Carpenter, the Court of Justice held that the foreign national family member of a British citizen providing services in other EU countries could derive a right of residence from the British man. She was needed to provide child care and without her the British man would be discouraged from making use of his EU law rights. The right to provide services in another EU country is now enshrined in Article 56 TFEU.

Carpenter has seldom arisen again domestically within the UK, although I gave it a mention in my Surinder Singh ebook. Carpenter was, though, followed and applied by the Court of Justice to employed individuals exercising rights under Article 45 in the S & G case. Article 45 TFEU sets out the right of free movement of workers around the EU. The conclusion in S & G was:

In the light of the foregoing, Article 45 TFEU must be interpreted as conferring on a third-country national who is the family member of a Union citizen a derived right of residence in the Member State of which that citizen is a national, where the citizen resides in that Member State but regularly travels to another Member State as a worker within the meaning of that provision, if the refusal to grant such a right of residence discourages the worker from effectively exercising his rights under Article 45 TFEU, which it is for the referring court to determine.

This new case, LS, is the first of which I am aware in which S & G was applied domestically by a court in the UK.

The tribunal held that, to succeed, first of all, the appellant needs to show:

1. That he or she is a family member (for example, spouse or partner or dependent parent or grandparent);
2. Of a Union citizen who is exercising Article 45 TFEU rights as a worker in another EU country (“Any Union citizen who regularly travels, in the course of his or her professional activities, to a Member State other that the Member State in which he or she resides will fall within the scope of Article 45.”);
3. And that the appellant is needed by the Union citizen for childcare purposes, which will require demonstration “by the provision of reliable evidence, that genuine and reasonable steps have been taken or investigated to obtain alternative childcare provision”;
4. And that the Union citizen would be deterred from exercising his or her Article 45 free movement rights as a worker if the childcare was not available (“Any interference must be real such that the Tribunal is satisfied that the Union citizen will in fact be discouraged from the effective exercise of his or her rights as a direct consequence of the childcare issues.”).

When it comes to demonstrating that alternative childcare is not feasible the tribunal makes clear that merely preferring that a family member provide the childcare is not sufficient and some serious effort is needed:

Sources of alternative childcare may include, inter alia, other friends or family, the child’s nursery or school (including breakfast or after school clubs), child-minders, the use of one or more au pairs, the employment of one or more live-in nannies, or a combination of the above.

The case succeeded on its facts. An au pair arrangement would not work because there are limits to au pair contracts and evidence of babysitter searches was presented to the tribunal. The child was already at a full time nursery but the couple worked such long hours and travelled so frequently for work that a team of three live-in nannies would be needed to provide 24/7 childcare frequently but on an unpredictable basis. The tribunal held this would not be feasible for the couple.

The full headnote:

Great result and innovative thinking by the solicitors and counsel, Sterling Law and Sanaz Saifolahi led by Anthony Metzer QC (the same barristers who recently brought you Banger).