UITSPRAAK: Kan een familielid een verblijfsrecht krijgen omdat anders de ouders van een kind geen gebruik kunnen maken van het vrij verkeer van werknemers omdat er geen adequate kinderopvang is?

 Deze Britse zaak borduurt voort op een Nederlandse zaak, S+G, die bij het Europese Hof is beslist:


 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. 

16.   An analysis of S & G bears the following observations.

 

17.   In assessing whether a third country family member of a Union citizen has established a derived right of residence the Tribunal must first be satisfied that the third country national is a family member, within the definition of the Citizens Directive, and that the Union citizen is exercising Treaty rights. 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. It is for an appellant to prove, on the balance of probabilities, that the Union citizen is in fact exercising free movement rights, and the Tribunal will be assisted by reliable evidence such as verifiable letters from the Union citizen's employer detailing the nature and extent of the employee's business travel to other Member States, and ticket and booking receipts relating to that travel.

 

18.   The CJEU recognised that 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. The CJEU also made it clear that the desirability of having a third country family member of the Union citizen or his or her spouse is not sufficient in itself to constitute a dissuasive effect on the exercise of Article 45 rights. In each case the Tribunal will therefore need to undertake a wide evaluative assessment of the particular childcare needs in light of all relevant circumstances including the age and health of the child, the stage of the child's education, and the reasonable availability of adequate childcare from other family members, including the Union citizen's spouse or partner, or from other professional or informal providers. The appellant will need to demonstrate, by the provision of reliable evidence, that genuine and reasonable steps have been taken or investigated to obtain alternative childcare provision. 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.

 

19.   It is necessary for an appellant 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. In so doing the Tribunal will need to determine the reasons for and extent of any interference with the Union citizen's Article 45 rights. 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.

 

20.   In determining whether alternative professional child care is reasonably available the Tribunal will need to bear in mind the Treaty rights of other family members and the requirements of the Working Time Regulations 1998.

 

Facts of this appeal

 

21.   The appellant is a national of Russia who was born in 1950. She entered the UK in February 2015 as a visitor. Her daughter, IB, is a dual British/Russian citizen who naturalised as a British citizen in August 2007. She is married to MB, a dual British/Russian citizen who naturalised as a British citizen in July 2007. They have a British citizen child, AB, born in February 2015. The appellant is AB's grandmother. AB is currently 3½ years old.

 

 

DECISION AND REASONS

 

1.       This appeal concerns the circumstances in which a third country national who is a family member of a British citizen may be able to establish a derivative right of residence under Article 45 TFEU when the British citizen is living in the UK but travels to another Member State as part of his employment.

 

37.   In their additional statements both MB and IB outlined their extensive research for a nanny or au pair as an alternative child carer to the appellant. There was no suggestion by Mr Tarlow that the efforts made by IB and MB to obtain alternative childcare were not genuine. I find, for the following reasons, that genuine and reasonable steps have been taken to obtain alternative childcare provision.

 

38.   Neither IB nor MB had any other family in the UK, and none of their friends are capable of providing for AB's childcare needs. The evidence produced on behalf of the appellant includes text/MMS messages between IB and previous child carers who had been employed and an outline of archived conversations left on the childcare.co.uk website between IB and potential childcare candidates. The text messages indicated the unreliability or unsuitability of some of the past and prospective child carers, or their unavailability for the times or days required. IB also provided broad details of searches she conducted from May 2015 for suitable candidates using two of the largest UK childcare online directories (Sitters.co.uk and Findababysitter.co.uk).

 

39.   I am persuaded, given AB's particular childcare needs, that an au pair would not be a suitable alternative. According to an extract from the Gov.UK website provided by the appellant au pairs are unlikely to be classed as workers or employees and are treated as members of the family with whom they live and who provide them with 'pocket money'. Evidence provided by the appellant stemming from au pair agencies indicate that au pairs can be on duty up to around 30 hours a week which includes evening babysitting, that au pairs are generally unqualified child carers and should not be expected to have sole care for a child all day, and that au pairs cannot perform regular night duties. Given that, on occasions, both MB and IB may be away on business, an au pair, or even a combination of au pairs (which itself would present difficult accommodation issues) would not be available 24 hours a day.

 

40.   I am additionally satisfied that reasonable steps have been taken in exploring the alternative of live-in nannies. Given the significant amount of travel undertaken by both MB and IB, and the possibility that they could both be required to travel at short notice for several days at the same time, and the statutory requirement to give daily rest periods contained in Regulation 10 of the Working Time Regulations 1998, I am satisfied that at least two live-in nannies would be required, and that, in all probability, three would be needed in case one is unable to work on a particular day and bearing in mind night-care requirements and weekend care requirements. The financial and practical consequences in employing 3 live-in nannies would be significant for MB and IB, requiring them to purchase a bigger house and leading to significantly increased mortgage costs, if a mortgage was available, in addition to the wages of the nannies. I am consequently persuaded that the possibility of employing live-in nannies, on the particular and unusual facts of this case, is not reasonably open to AB's parents.

 

41.   Mr Tarlow did not suggest that it would be reasonable for IB to give up her employment in order to look after her daughter. Whether it would be reasonable to expect one spouse to limit or relinquish their own employment so as to enable the other spouse to continue to exercise their free movement rights will depend on the particular facts of each case. In the present appeal the unchallenged evidence indicates that IB also exercises her free movements rights as a worker pursuant to Article 45 TFEU, although to a lesser degree than MB. She nevertheless also travels in the course of her professional activities to Member States. If she abandoned or limited her employment this would, I find, equally discourage her from exercising her free movement rights as a worker under Article 45. For these reasons I do not find it reasonable for IB to give up or limit her employment.

 

42.   The essential issue that I need to determine is whether the refusal to issue the appellant a residence card discourages MB from effectively exercising his rights under Article 45 TFEU. For the reasons given above I am satisfied that MB would be unable to effectively exercise his free movement rights, given the very particular childcare needs of AB, unless the appellant is granted a right of residence. This is not a case of MB and IB preferring to have a family member look after their child. I find, 'but for' the issuance of a residence card to the appellant, MB would be discouraged from travelling to other Member States in the course of his employment. I consequently find that the appellant does derive a right to reside in the UK from Article 45. 

 

 Vindplaats: https://www.bailii.org/uk/cases/UKUT/IAC/2018/426.html


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