Derivative rights of residence
An application for the EEA family permit under the derivative right of residence can be made if:
• You are a primary carer of an EEA child in the UK who is financially independent;
• child of an EEA former worker and you’re currently in education in the UK;
• primary carer of a child of an EEA former worker and the child is currently in education in the UK;
• primary carer of a British child;
• primary carer of a British dependent adult;
• child of a primary carer who qualifies through one of these categories.
A ‘primary carer’, must have responsibility for the day to day care of a person, including making decisions about their education, health, and finances. Applicant must be a family member or their legal guardian, and can be their main carer or share that responsibility with someone else.
Derivative rights of residence visa holders now can now apply for Indefinite leave to remain.
There are three types of Derivative rights of residence:
• Ibrahim-Teixeira cases
This applies to situations where a child of an EEA national is in education in the UK, and the applicant is the primary carer of such a child. Dependent children of such primary carers should also qualify for a right of residence where failure to give such a right would have the effect of preventing that primary carer from residing in the UK.
• Ruiz Zambrano cases
This applies to the primary carer of a British citizen residing in the UK or the dependant of such a primary carer. The primary carer of a British citizen who is residing in the UK has a right to reside under EU law if their removal from the UK would require the British citizen to leave the EEA. Potential Zambrano applicants must first make a human rights application under British immigration law. The applicants do not have a choice between applications under Zambrano or the UK Immigration Rules.
This category is currently being reconsidered by the Home Office in a view of a new High Court judgment R (Akinsanya) v Secretary of State for the Home Department [2021] EWHC 1535 (Admin). Application are open under EUSS until the end of September 2021 for those who did not have leave under this route before.
Before the judgment mentioned above it was increasingly difficult to apply under this route due to following reasons:
The Zambrano principle cannot be regarded as a back-door route to residence by such non-EU citizen parents.Therefore, the application must be refused if the applicant:
– has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available;
– has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child.
• Chen cases
This applies to the primary carer of an EEA national child who is exercising free movement rights in the UK, and the dependant of such a primary carer.
A child will have a right of residence in a member state where that child:
(a) is an EEA national,
(b) holds sufficient resources to prevent them (and their primary carer) becoming a burden on the social assistance system of the host member state, and
(c) holds comprehensive sickness insurance.
The primary carer of such a child will have a right of residence in the host member state until the child’s eighteenth birthday where to refuse such a right would prevent the child from continuing to reside in the UK.
