26 April 2019

Derivative rights of residence now part of EU Settlement Scheme

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‘Derivative rights’ are rights which do not come directly from the Free Movement Directive 2004/38/EC but rather come from other instruments of EU law. Until recently anyone having a derivative right of residence did not qualify for permanent residence in the UK. This changed on 29th March 2019. Now anyone carrying the derivative right of residence will be included in the EU settlement scheme.

This means applicants will now be able to apply for settled status (ILR) once they have lived in the UK continuously for five years under this category and meet settlement criteria under the scheme.

This could be welcoming news for those parents who have British children but they themselves are on discretionary leave to remain on a 10 years route to settlement.

Who can qualify?

A person who is not an ‘exempt person’ may qualify for a derivative right of residence. The requirements are set out in regulation 16 of the Immigration (European Economic Area) Regulations 2016 (the 2016 regulations) which state:

16.—(1) A person has a derivative right to reside during any period in which the person—

(a)is not an exempt person; and

(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).

An ‘exempt person’ is defined in regulation 16(7)(c) of the 2016 regulations as a person: who has a right to reside in the UK as a result of any other provision of the 2016 regulations, for example:

  • a person who is already exercising free movement rights as a European Economic Area (EEA) national;
  • a person who has a right of abode in the UK by virtue of section 2 of the Immigration Act 1971 (the 1971 act), for example, the person is a British citizen;
  • a person to whom section 8 of the 1971 act, or any order made under subsection (2) of that provision applies; and
  • who has indefinite leave to enter or remain in the UK.

Types of derivative rights of residence

A person may qualify for a derivative right of residence in one of the following categories:

  • Zambrano cases;
  • Chen cases;
  • Ibrahim and Teixeira cases; and
  • dependent child aged under 18 of a primary carer in one of the categories set out above

For the purposes of this article, I will concentrate on “Zambrano cases.”

Zambrano cases

A person may qualify for a derivative right of residence under this category if he/she is a primary carer of a British citizen child or dependent adult and where requiring the primary carer to leave the UK would force that British citizen to leave the European Economic Area (EEA).

Regulation 16 (5) of the 2016 Regulations provides:

(5) The criteria in this paragraph are that—

(a)the person is the primary carer of a British citizen (“BC”);

(b)BC is residing in the United Kingdom; and

(c)BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.

This is a piece of welcoming news for parents of British children who either have no leave or limited leave to remain under the immigration rules (10 years category). Switching under this category may potentially reduce the time required to obtain settled status in the UK for up to 5 years.

About the Author

Awais Javed
Awais has an extensive experience of advising high net-worth individuals on all types of immigration matters, ranging from investor and entrepreneur visa applications to appeals and judicial reviews in the Immigration Tribunal and the High Court.

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