UK Immigration Case Study: Derivative Right of Residence

In 2004, the European Court of Justice passed a judgement that lays the foundation for one of the categories under derivative rights of residence. Derivative rights of residence are ‘derived’ from other instruments of the EU law. A person who does not qualify for a right of residence in the UK under the EU Directive 2004/38/EC may qualify for another right of residence under the EU law. There are different type of derivative rights of residence. In the case of Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department (Case C-200/02), it was ruled that a parent of an EEA-national minor may qualify for a right of residence in another Member State of the EU. Similar cases are now broadly known as “Chen” cases.

Derivative Residence Card legal advice from LEXVISA London Immigration Solicitors

Derivative Right of Residence: The Facts of ‘Chen’

Mrs Lavette Chen was a Chinese national. She applied to the UK Home Office for a long-term permit to reside in the UK on the basis that her 8 months old daughter, Kunqian Catherine Zhu, was an Irish national. However, she was refused in this application as the Home Office was not satisfied that a minor like Catherine was exercising Treaty rights. There were several arguments that was put before the courts. This argument was rejected by the courts and it was stated that: “every person holding the nationality of a Member State is a citizen of the Union. Union citizenship is destined to be the fundamental status of nationals of the Member States”. Furthermore, by virtue of being a citizen of the Union, Catherine was entitled to rely on the European Community regulations and was seen to be exercising Treaty rights.

The SSHD further argued that Mrs Chen was not entitled to rely European Community provisions as she had an ill intent in deliberately creating a situation where she would give birth to Catherine in Ireland, such that the family may obtain long term residency in the UK after Catherine had obtained her Irish nationality. This argument was also quickly dismissed by the courts as no party had questioned the legality of Catherine’s acquisition of her Irish nationality. There was a further argument that Catherine was not in fact “self-sufficient” as the origin of funds was not from Catherine but from Mrs Chen, her parent, instead. This argument was also rejected by the Court as they have chosen to interpret “having” sufficient funds in the broad sense, in the way that as long as the EEA-national young minor has appropriate access to sufficient funds, they may be classified as self-sufficient.

Derivative Right of Residence: The Judgement of ‘Chen’

The Court ruled that:

“The right of residence confer on a young minor who is a national of a Member State, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host Member State, a right to reside for an indefinite period in that State. In such circumstances, those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host Member State.”

It follows that if you are a primary carer of of a young EEA-national minor, you may be eligible for derivative right of residence if you satisfy the following requirements:

  • The self-sufficient minor is covered by appropriate sickness insurance;
  • If requiring the primary carer to leave the UK, it will lead to the EEA national child being prevented from exercising their Treaty rights; and
  • The minor will not become a burden on the public finances of the host Member State.

Derivative Right of Residence: What you need to know

If you believe you have a derivative right of residence in the UK, you may apply for a derivative residence card. If you are successful in your application, you will be allowed to live and work in the UK as the primary carer of the related EEA-national. However, your right of residence will not have a fixed validity period. Your right of derivative residence will be maintained as long as your are eligible. This means that you may live and work in the UK as long as the person you are caring for continues to live in the UK and that you continue to care for them.

Obtaining documentation for your derivative right of residence will make it easier for you to re-enter the UK, to show employers that you have a right to work, and to show relevant authorities that you have the right to live in the UK.

You should note that any time spent when you are exercising your derivative right of residence will not be counted towards your permanent residence qualifying time. If you wish to explore your options in applying for Indefinite Leave to Remain in the UK, you should always contact us for strategic legal advice and possible options applicable to you.

Successful UK Derivative Residence Card Application

Our team of experienced and professionally qualified solicitors and barristers will be able to guide you through the process step by step and limit the possibility of failure by complying with the strict letter of the law. Please always call us for a telephone case assessment even if you wish to consider other advisers. If you wish to consider your options, please call our Immigration Team so we can assess your matter and if necessary advise you of the next steps you should take in a consultation.

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.

We can ensure that you remain compliant with your visa conditions and will be able to demonstrate your eligibility for an extension visa or possibly indefinite leave to remain. Get in touch with our business immigration lawyers now on 02030110276.   You can also reach us via our contact form.

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