Derivative Rights of Residence

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What are Derivative Rights of Residence?

*Update*

You can no longer apply for a derivative residence card. If you have a card, it is no longer valid. You will now need another type of permission to stay in the UK, such as pre-settled or settled status under the EU Settlement Scheme (EUSS).

What are Derivative Rights and Who is Eligible?

‘Derivative rights’ are rights which come from (or are ‘derived’ from) other instruments of EU law rather than from the Free Movement Directive. 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 Regulations 2016.

An ‘exempt person’ is defined in regulation 16 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
  • Who has a right of abode in the UK by virtue of section 2 of the Immigration Act 1971, for example, a British citizen

The Zambrano Principle

This principle states that if a child should have EU citizenship, the primary carer who is a non-EEA citizen will be able to live and work in the EU state, for as long as the child is taking up his/her rights of residence. Not granting these rights to the parents would be depriving the child of the genuine enjoyment of their citizenship rights under Article 20 of the Treaty on the Functioning of the European Union (TFEU).

The case of Zambrano related to children dependent on non-EU national parents. However, child-parent applications are not the only ones which can succeed under the Zambrano principle. Applicants with other types of familial relationships can also succeed, such as dependent elderly parents and their primary carers. This is proven through the case of MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580, whereby the Court of Appeal heard a case of an adult primary carer of a British citizen parent. The court confirmed the Zambrano principle can be relied on by the primary carers of adult British citizens who are dependent on non-EEA nationals.

How Can NA Law Solicitors Assist You?

We are a specialist immigration law firm with a wealth of experience and expertise in this area. Contact us today for a case assessment.

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