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EEA Derivative Rights and Article 45 TFEU

The decision in LS (Article 45 TFEU – derivative rights) [2018] UKUT 00426 (IAC) was published on 14 December 2018.

As a reminder of the relevant EU primary legislation, Article 45 TFEU secures the ‘freedom of movement for workers’ within the Union.  It does not, on its face, secure rights for anyone other than workers. However, derivative rights are those which are recognised for persons other than the main rights-holder, as if they were not it would interfere with the rights-holder’s exercise of that right.  

The headnote sets out that:

(1) In determining whether the absence of adequate provision for the childcare of the child of a Union citizen may be a factor capable of discouraging that Union citizen from effectively exercising his or her free movement rights under Article 45 TFEU, the Tribunal will need to undertake a wide evaluative assessment of the particular childcare needs in light of all relevant circumstances.

(2) It is necessary for an appellant claiming to have a derivative right of residence under Article 45 TFEU to establish a causal link between the absence of adequate childcare and the interference with the effective exercise by a Union citizen of his or her free movement rights, and the appellant will need to demonstrate, by the provision of reliable evidence, that genuine and reasonable steps have been taken to obtain alternative childcare provision.

Factual background

LS is a citizen of the Russian Federation and the grandmother and primary carer of a British child, S. S’s parents are both British citizens and travel extensively to other EU countries during the course of their employment. LS is the primary carer of S.

LS relied on Case C-457/12, S and G ECLI:EU:C:2014:136 in her application for a Residence Card.  It was argued that in the course of their employment, the parents of S, primarily her father, travelled extensively within the EU and LS was and had to be the primary carer for S. Alternative childcare was not a reasonable option due to the nature and extent of the care required.  

The application was refused, but LS’s appeal was allowed.  The SSHD sought permission to appeal, which was granted. There were errors of law and the Upper Tribunal re-heard and remade the decision, relying on primary EU legislation rather than the Citizens’ Directive.

The Upper Tribunal followed the approach of the Court of Justice in S and G and allowed the appeal, not based on the rights of S, but on the potential deterrent which would prevent her parents from exercising Treaty rights in other Member States if her primary carer was unable to reside in the UK: it was successfully argued that Article 45 TFEU applied, on the basis that the work patterns of S’s British parents were such that alternative childcare provision would be both unreasonable and impractical and the interference with their right to work in other EU states.

Regulation 16 of the Immigration (EEA) Regulations sets out the Derivative rights incorporated into UK law.  There is no recognition of the derivative rights of the primary carer of the child of British citizens exercising their right to work in other EEA states in the Regulations at present.

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