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EU SETTLEMENT SCHEME DERIVATIVE RIGHTS OF RESIDENCE

A person with a derivative right to reside in the UK is able to apply for Settled Status or Pre-Settled Status under the EU Settlement Scheme (see below).

These rights are based on case law of the European Court of Justice and were then implemented by the UK in the EEA Regulations (which, since the end of the Withdrawal Period on 31 December 2020, are no longer in force). 

Person Who Had a Derivative Right to Reside

A person who had a derivative right to reside in the UK must have been resident for a continuous qualifying period in the UK with a right to reside by virtue of Regulation 16(1) of the EEA Regulations in conjunction with subparagraphs (2), (3) and (4). This is based on the case law in Chen and others (Free movement of persons) [2004] EUECJ C-200/02, Ibrahim C-310/08 and Teixeira C-480/08

You will be required to to show that you are: 

  • The primary carer of:
    • A child from the EEA who is financially independent (regardless of whether they had comprehensive sickness insurance cover in the UK) who would have to leave the UK if you left the UK; 
  • The child of an EEA national who stops working in the UK or leaves the UK whilst you are in education in the UK.

The Home Office has published extensive guidance to show how a derivative right to reside can be evidenced under the EU Settlement Scheme.

Person Who Had a Zambrano Right to Reside

Zambrano’ rights to reside are derivative rights held by primary carers of British citizen children or dependent adults, who would have to leave the EEA if the carer left the UK.  A person who had a derivative right to reside must have been resident for a continuous qualifying period in the UK with a right to reside by virtue of regulation 16(1) of the EEA Regulations in conjunction with subparagraphs (5) and (6). 

You will be required to to show that you are: 

  • The primary carer of:
    • a British child who would have to leave the EEA if you left the UK; or
    • a British dependent adult who would have to leave the EEA if you left the UK; or
  •  The child of a primary carer in circumstances where:
    • you are under the age of 18 (or were when you first applied under the Settlement Scheme); and
    • the primary carer is eligible for a derivative residence card; and
    • your parent would have to leave the UK if you left the UK

Additionally, an applicant will not be eligible if they have the right of abode, if they are exempt from immigration control, or if they have any form of (limited or indefinite) leave to enter or remain in the UK, unless it was granted under Appendix EU or it is in effect by virtue of section 3C of the Immigration Act 1971. Finally, a person who continues to have a right to reside under the EEA Regulations or is subject to a removal, cancellation, or exclusion decision under those Regulations, unless that decision has been set aside or no longer has effect, will not be eligible.

'Primary carer’

You will qualify as a ‘primary carer’ if you are someone’s main carer, or you share the responsibility with someone else, and you are their direct relative or legal guardian. Direct relatives include:

  • Parents
  • Grandparents
  • Spouses or Civil Partners
  • Children (including adopted children but not stepchildren)
  • Grandchildren

If you have previously been issued a residence card or an EEA Family Permit under the EEA Regulations on the basis that you are the person’s direct relative, this will be accepted in an EUSS application. Otherwise evidence of the relationship must be provided. 

Application under the EU Settlement Scheme

To make applications under these routes, you will need to make a valid application.  For these applications this means that you will need to request a paper form from the EU Resolution Centre. 

You will need to provide evidence to show that the conditions were met throughout the period of residence relied on. Unlike under the EEA regulations, time spent residing in the UK as a person with a derivative or Zambrano right to reside can now be relied on to live permanently in the UK (after 5 years continuous residence). 

You will also need to meet the suitability requirements. 

The deadline to apply was 30 June 2021. If you did not apply in time, you may be able to apply late if you have reasonable grounds for missing the deadline. This could include where you already hold a document issued under the EEA Regulations which is valid beyond this date and you were not aware that you needed to make an application to the EU Settlement Scheme.  See EU Settlement Scheme Deadlines & Late Applications and EU Settlement Scheme Deadlines and Late Applications.

  • EU Settlement Scheme Deadlines and Late Applications
  • EU Settlement Scheme Deadlines & Late Applications
  • New Guidance on Late Surinder Singh Applications
  • Avoiding Delays in EU Settlement Scheme Applications
  • The Status of EU Settlement Scheme Applicants After 30 June 2021

What if My EU Settlement Scheme Application Has Been Refused?

If your application has been refused, you will have a right of appeal to the First-tier Tribunal (Immigration & Asylum Chamber) or administrative review.

Entering the UK as a Primary Carer of a British citizen (Zambrano applications)

On 8 August 2023, the EUSS Family Permit closed to primary carers of a British citizen (known as the ‘Zambrano’ route). Applicants considering entering the UK via this route now need to meet the family Immigration Rules applicable to others instead.

The EUSS Family Permit Zambrano route remains open to those who are already on it. Those granted an EUSS Family Permit on the basis of a Zambrano application made by 8 August 2023 are also able to come to the UK and apply to the EU Settlement Scheme.

How Our Immigration Barristers Can Help

Our immigration barristers regularly assist EU, EEA and Swiss citizens and their family members to apply to the EU Settlement Scheme.  

Whether you require expert advice on the requirements of the EU Settlement Scheme, an independent assessment of your prospects of qualifying for the EU Settlement Scheme or professional assistance with preparing an EU Settlement Scheme application or appeal, our immigration barristers can help.

We pride ourselves on being approachable and proactive in understanding and meeting our clients’ needs. We are a highly driven team, dedicated to providing clear and reliable immigration advice to EU, EEA and Swiss citizens and their family members as part of a professional and friendly service.

 

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