MS v Secretary of State for Work and Pensions (IS)  UKUT 348 (AAC) (Judge Jacobs), 21 July 2016 The claimant instead fell within the scope of Art 3(2)(a) Directive 2004/38/EC as ‘another family member’.
The claimant was a Polish national. After her mother’s death, her brother was appointed as her legal guardian by a Court Order in Poland. In June 2015, she claimed income support as a lone parent. It was argued that as she was under 21 and her brother was a worker, she therefore had a right to reside as a ‘direct descendant’ under Art 2(2)(c) Directive 2004/38/EC.
The claimant’s appeal was dismissed. The Guardianship Order did not have the effect that the claimant became a direct descendant of her brother. The claimant instead fell within the scope of Art 3(2)(a) Directive 2004/38/EC as ‘another family member’ but this right to reside could not arise until the Secretary of State for the Home Department issued the appropriate documentation.