Guardianship Order did not have the effect that a sister became a direct descendant of her brother under Directive 2004/38/EC

Sunday 30 October 2016

In MS v Secretary of State for Work and Pensions (IS) [2016] UKUT 348 (AAC), 21 July 2016 the Upper Tribunal held that guardianship between a brother and a sister did not create a parental relationship.

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MS v Secretary of State for Work and Pensions (IS) [2016] UKUT 348 (AAC), 21 July 2016

In MS v Secretary of State for Work and Pensions (IS) [2016] UKUT 348 (AAC), the Upper Tribunal held that guardianship between a brother and a sister did not create a parental relationship. 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 did not therefore fall under Art 2 Directive 2004/38/EC as a ‘family member’. Instead she fell within the scope of Art 3(2)(a) as ‘another family member’ and this right to reside could not arise until the Secretary of State for the Home Department issued the appropriate documentation.

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