AM v SSWP and Swansea- similar cases needed - eg R2R of primary carer of pre-school age child and absent parent an EU worker

Hi All,

Some time ago, I managed to lose for the claimant in AM v Secretary of State for Work and Pensions and another (JSA, IS and HB) [2019] UKUT 361 (AAC).

The facts in this case were:

1. Pre school age EU citizen child whose absent parent was an EU worker.
2. Primary carer of child (typically mother) has no EU law right of residence in her own capacity sufficient to obtain benefits.

The argument was:

1. Child has a right of residence as family member of EU worker parent.
2. Mother must have right of residence to render that right effective.

The UT dismissed the appeal.

We think that decision was arguably wrong because it did not take into account sufficiently that the right of residence of the child arose under article 21 TFEU (albeit because the conditions in article 7(1)(d)- family member of worker -  were met) and therefore needed to be rendered effective and also because it failed to take sufficient account of the father’s article 45 rights to pursue free movement to work here which may be infringed if child unable to live in same EU state.

Obviously, the arguments are quite complex but that is our position in very short version.

Unfortunately, AM is unable to pursue an application for permission to appeal to the Court of Appeal.

If anyone else has a case where the facts are as above that is in the appeal system then we would be really interested to hear from you- feel free to email the testcases inbox (.(JavaScript must be enabled to view this email address)).

Martin