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A Derivative Right To Reside In The UK – A Possible Route For Primary Carers Of EEA Citizens To Remain In The UK

Posted by: Gherson Immigration

The Right of Free Movement between all EU Member States is enacted in the Citizens’ Directive (Directive 2004/38/EC) and allows European nationals and their family members to move and live freely between member states. This legislation has been incorporated in UK domestic law by The Immigration (European Economic Area) Regulations 2016 as amended (also known as The EEA Regulations). 

The EEA Regulations allow EEA nationals and their family members to live and work in the UK in line with Free Movement Rights. At the end of the Brexit transition period on 31 December 2020 these rights will come to an end and any EEA nationals who seek to enter the UK for the purpose of residence or work must enter under the new domestic immigration routes.

EEA nationals who enter the UK before 31 December 2020 may be eligible to apply for residence under the EU Settlement Scheme.

Please do contact Gherson should you wish to discuss this further.

Certain non-EEA family members presently derive their right of free movement through EU case law and secondary legislation made under the European Communities Act 1972 (including the EEA Regulations):

  1. Ruiz Zambrano (European Citizenship) [2011] EUECJ C-34/09 (08 March 2011) [known as ‘Zambrano Cases’]
  2. Chen and others (Free movement of persons) [2004] EUECJ C-200/02 [known as ‘Chen Cases’]
  3. Ibrahim C-310/08 and Teixeira C-480/08 [known as ‘Teixeira/Ibrahim Cases’]

This blogs deals specifically with rights derived from the case of Chen. 

This case established that self-sufficient EEA national children have the right to be accompanied by their primary carer, where they would be unable to remain in the UK if the primary carer were made to leave. Specifically, such an applicant would need to demonstrate: 

  • that the EEA citizen is under the age of 18;
  • that the EEA citizen is self-sufficient, either as a result of the applicant or on their own accord (the child must have sufficient resources to prevent them becoming a burden on the social assistance system, and have comprehensive sickness insurance);
  • that the applicant is the EEA citizen’s direct relative;
  • that the applicant is the EEA citizen’s primary carer; and
  • that if the applicant was made to leave the UK, the EEA citizen would be unable to remain in the UK. 

The relevant EEA citizen will also need to register on the EU Settlement Scheme in order to confirm that they are resident in the UK. 

EEA nationals hoping to apply for residence status in the UK under the EU Settlement Scheme, amongst other requirements, must be residing in the UK prior to the 31 December 2020. Non-EEA family members may be able to apply for leave to enter the UK after the end of the Brexit transition period, on the basis that the relationship with the relevant EU national existed prior to 31 December 2020 and that the relevant EU national was duly resident in the UK before the deadline. 

However, it is unclear what will happen to derivative right applications after the end of the transition period as these rights are derived directly from EU Case Law which will not be binding on the UK after Brexit. There has been no further clarity on how these rights may be implemented into UK domestic law, and whether applicants will continue to be able to rely on the cases of Chen, Zambrano, Teixeira, and Ibrahim in order to reside in the UK.

An application for the EU Settlement Scheme as a person with a derivative right is by no means straightforward. Should you require assistance with such an application, Gherson has extensive experience with EU Settlement Scheme applications. 

Gherson continues to monitor any immigration updates closely. The information published in this blog is accurate at the time of posting and may change. Please continue to visit our website for further updates.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2020

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