Derivative right of residence for family members of British citizens under EU law

The Upper Tribunal reviewed the free movement rights of British citizens, who frequently travel to EU countries for business purposes (case LS v SSHD (Article 45 TFEU – derivative rights) [2018] UKUT 00426 (IAC)) and ruled that foreign family members of such British citizens are able to obtain derivative right of residence in accordance with Article 45 of TFEU under certain circumstances. For example, when both partners with British citizenship are cross border workers, their  foreign family member can apply for derivative right of residence if he/she provides childcare while parents are away.

The applicant in this case is a Russian citizen who came to the United Kingdom to visit her daughter and son in law, both British citizens, who had their first child. Both parents had to travel to the EU countries very often as part of their employment contracts. After a few months, despite the parents’ attempts to find a local childcare specialist, it became obvious that only the applicant could help the family in this matter. Without her help, parents would not be able to continue working for their current company, which meant that they would not be able to exercise their free movement right under Article 45 of TFEU.

The court ruled that in order to get derivative right of residence, the following requirements must be met:

• The applicant must be a family member (for example, a spouse, partner, parent or grandparent) of a citizen of the member States (including the United Kingdom);

• A citizen of one of the Member States must exercise his/her right to free movement under Article 45 of TFEU, namely  to make regular and frequent trips to other EU countries for professional purposes;

• The applicant must take care of the child during the absence of family members. However, the family has to present evidence that reasonable steps have been taken to provide alternative childcare options (au-pair, nannies, etc.);

• If not for the presence of a foreign family member, the citizen of the Member State would have to quit their  job in order to take care of the child, which would deter him/her from exercising Article 45 free movement rights as a worker.