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EU SETTLEMENT SCHEME DERIVATIVE RIGHTS OF RESIDENCE

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.

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 now no longer have 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 Ibrahim/Teixeira

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 if you are in education in the UK;

Person Who Had a Zambrano Right to Reside

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

The EU Settlement Scheme currently only allows an application to be made where the person does not have any other form of leave to enter or remain in the UK under the Immigration Rules –  for example as the parent of a British child in Appendix FM.

However, the High Court recently decided that this was unlawful and held that Zambrano carers can make an application even if they currently have leave to remain on a different basis. The Home Office has agreed to reconsider the content of Appendix EU and the guidance. 

To discuss your EU Settlement Scheme Derivative Rights of Residence application with one of our immigration barristers, contact our EU Settlement Scheme lawyers on 0203 617 9173 or complete our enquiry form below.

‘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 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. 

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.

We can also assist with

  • Applications for EU Settlement Scheme Family Permits

    The EU Settlement Scheme Family Permit is available to non-EEA citizens who wish to travel to and enter the UK in order to join or accompany a close family member who is a relevant EEA citizen, including EEA or Swiss nationals with ‘settled’ or ‘pre-settled’ status under the EU Settlement Scheme.

    In order to qualify for an EU Settlement Scheme Family Permit you will need to satisfy UK Visas & Immigration that:

    • You are a non-EEA citizen;
    • You are the close family member of a relevant EEA citizen;
    • The relevant EEA citizen is resident in the UK or will be travelling to the UK within 6 months;
    • You will be accompanying the relevant EEA citizen to the UK or joining them in the UK;
    • You are not the spouse, civil partner or durable partner of a relevant EEA citizen where either you or your partner have been granted an EEA Family Permit issued under the EEA Regulations or otherwise have been granted leave under or outside the Immigration Rules.

    The exact requirements you will need to satisfy will vary depending on your circumstances.  You may want to speak to an immigration lawyer for expert advice.

  • Applications for EU Settlement Scheme Pre-Settled Status

    In order to qualify for Pre-Settled Status you will need to satisfy UK Visas & Immigration that:

    • You are a relevant EEA citizen; or
    • You are a family member of a relevant EEA citizen; or
    • You are a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
    • You are a person with a derivative right to reside; or
    • You are a person with a Zambrano right to reside; and
    • You started living in the UK by 31 December 2020; and
    • You are not eligible for Settled Status under the EU Settlement Scheme solely because you have not completed a continuous qualifying period of residence of at least 5 years.

    The exact requirements you will need to satisfy will vary depending on your circumstances.  You may want to speak to an immigration lawyer for expert advice.

  • Applications for EU Settlement Scheme Settled Status

    In order to qualify for Settled Status you will need to satisfy UK Visas & Immigration that:

    • You are a relevant EEA citizen; or
    • You are a family member of a relevant EEA citizen; or
    • You are a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
    • You are a person with a derivative right to reside; or
    • You are a person with a Zambrano right to reside; and
    • You started living in the UK by 31 December 2020; and
    • You have completed a continuous qualifying period of residence of at least 5 years.

    The exact requirements you will need to satisfy will vary depending on your circumstances.  You may want to speak to an immigration lawyer for expert advice.

     

  • Applications for British Citizenship

    Applications for British Citizenship can usually be submitted after Settled Status has been held for 12 months and other requirements have been met.

    In order to be naturalised as a British citizen, you will need to meet certain statutory criteria with regard to your immigration status, length of residence in the UK, future intentions, knowledge of the English language and life in the UK, and good character.  The requirements for British Citizenship by Naturalisation vary slightly depending on whether you are married to a British citizen or not.

  • Fresh Applications, Appeals, Administrative Reviews and Judicial Reviews

    If your application to the EU Settlement Scheme has been refused or you think you should have been granted a different status, our immigration barristers can advise on the merits of making a fresh application or challenging the decision.

    It is no longer possible to submit a fresh application to the EU Settlement Scheme but if you applied to the EU Settlement Scheme after 11pm on 31 January 2020 then our immigration barristers can represent you in appeal proceedings before the Immigration Tribunal.

    If the decision-maker failed to apply the Immigration Rules or Home Office policy correctly, we can bring Administrative Review proceedings to challenge the decision.

    If the decision to refuse your application was unlawful, unreasonable or procedurally improper, our immigration barristers can apply for Judicial Review and provide representation at Judicial Review hearings.

WHAT CAN WE HELP YOU WITH?

To arrange an initial consultation meeting with one of our immigration barristers, contact our EEA Nationals and Family Members immigration team on 0203 617 9173 or complete our enquiry form.

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