What are derivative rights of residence?
‘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, the person is a British citizen
- to whom section 8 of the 1971 act, or any order made under subsection of that provision applies
- who has indefinite leave to enter or remain in the UK
The UK has left the EU. Derivative residence card applications cannot be made. If you have a derivative residence card, this will not be valid after the 30th June 2021.
You can apply to the EU Settlement scheme if ,prior to 31st December 2020, you were living in the UK and are:
- the primary carer of someone who has the right to live in the UK
- the primary carer’s child
- the child of a former European Economic Area (EEA) worker if you’re at school, college or university in the UK
A ‘primary carer’ means you’re someone’s main carer, or you share the responsibility with someone else, and you’re their direct relative or legal guardian. Direct relatives are:
- spouses or civil partners
- children (including adopted children but not step-children
If you would like to move to the UK to visit, study or work and need help in your UK visa application, get in contact with us and our team will support you in finding the option available to you.
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 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 relationships can also succeed, such as dependent elderly parents and their primary carers. This is proven through the case of MS (Malaysia) v Security of State for the Home Department 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.