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.
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.
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