Non-EEA family members can apply for Derivative rights of residence under EU law. The requirements for a Derivative right of residence application are set out under Regulation 16 of the Immigration (European Economic Area) Regulations 2016. There are a number of different types of Derivative rights of residence applications that can be made depending on the circumstances of Individual cases.
Derivative rights of residence under Chen cases
One of the categories under the Derivative rights of residence is the ‘Chen cases’ category, to apply under the Chen route you must be a primary carer of an EEA national child who is exercising free movements rights in the United Kingdom. The EEA national child must be self-sufficient and must be able to demonstrate a tie to their non-EEA national parent. The Chen route derived from Chen and others (Free movement of persons) EUECJ C-200/02. In this case, the court found that self-sufficient EEA national children are entitled to be accompanied by their primary carer who can apply for a Derivative right of residence card until their child reaches the age of 18. In order to apply for Derivative rights of residence card under the Chen route the following conditions must be satisfied:
- The EEA national child must be under the age of 18 and must be able to show their ties to their non-EEA national parent. It is crucial that the EEA child can show a tie to their non-EEA family member i.e. parent or legal guardian;
- The non-EEA parent must be the primary carer of the EEA child and there must be documentation in support of sole responsibility;
- The EEA national child must be self-sufficient and hold comprehensive sickness insurance. It is possible to show self-sufficiency through income from the primary carer or through cash savings; and
- The EEA national child must also show that it is impossible to stay in the United Kingdom without the non-EEA parent (primary carer).
As per all Home Office applications, the non-EEA parent must show that there are no public policy or public security concerns if a Derivative right of residence application is granted.
Derivative rights of residence under Ibrahim and Teixeira cases
In the cases of Ibrahim C-310/08 and Teixeira-C480/08, it was decided that children who are in education in a host member state where the EU citizen works or has worked can apply for Derivative rights of residence. The Primary carers of children who are in education in a host member state where the EEA national works can also apply. In order to apply for Derivative rights of residence card under the Ibrahim and Teixeira route the following conditions must be satisfied:
- The child must be a child of an EEA national and the EEA national must have been a worker when the child lived in the UK. The person claiming to be the primary carer must be a direct relative or legal guardian;
- Evidence must be provided that the child is in education and that the child is unable to continue education if the primary carer is required to leave the United Kingdom;
Derivative rights of residence under Zambrano cases
In Ruiz Zambrano (European citizenship)  EUECJ C-3409 the Court of Justice of the European Union established that EU member states cannot refuse a person a right to reside and work in a host member state where to do so would deprive EU citizens their rights under EU law by forcing them to leave. Therefore, this means a Primary carer of a British citizen who is residing in the UK has a right to reside under EU law. In order to apply for Derivative rights of residence card under the Zambrano route the following conditions must be satisfied:
- The person from whom the primary carer is deriving a right of residence must be a British citizen;
- The person claiming a Derivative right of residence must be a direct relative or legal guardian and the primary carer of the British citizen;
- The person claiming a Derivative right of residence must be able to show by not granting a Derivative right of residence the British citizen will have no choice but to leave the UK; and
- There should be no reasons to refuse the application on grounds of public policy, public security and public health.
In some circumstances, dependents of the primary carer may also be eligible for Derivative rights of residence. It should be noted that this only applies for dependent children under the age of 18.
Using Legal Representation to submit successful Derivative rights of residence applications
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration matter. You can instruct one of our immigration and visa legal representatives to successfully assist you with Derivative rights of residence applications. Our solicitors and Barristers will help you comply with the Home Office’s requirements and meet the Immigration Rules.
Caseworkers at the Home Office are trained to reject Derivative rights of residence applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your Derivative rights of residence application succeeds, our solicitors and barristers will ensure all specified documents must be provided.
The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successfully submit Derivative rights of residence applications
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your prospects of submitting Derivative rights of residence applications before your application even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation and submission of an application and ensure that you meet all the requirements of the relevant rules.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
Preparation is the key to a successful application. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation to discuss your immigration matter or application.
Contact our London immigration solicitors on 02071830570 or complete our contact form.