Free Movement Rights: derivative rights of residence
The Derivative Residence allows non-EEA family members to remain in the UK. A ‘person with a derivative right to reside’ can apply for settled status (indefinite leave to enter or remain in the UK) or pre-settled status (limited leave to enter or remain in the UK) under the Immigration Rules, enabled by the Immigration Act 1971.
‘Derivative rights’ are derived from wider EU law rather than from the Free Movement Directive 2004/38/EC and have been confirmed by CJEU judgments.
The Settlement Scheme separates the grounds of the application when made on the derivative rights of residency. As confirmation of a derivative right of residence, a person can apply for a derivative residence status which will be granted on the pre-settled status route if you have not completed 5 years residency or settled status, if you have completed the periods of residency 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:
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Zambrano cases.
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Chen cases.
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Ibrahim and Teixeira cases.
So let’s look at those categories in brief:
Zambrano cases
The primary carer of a British citizen child or dependent adult, where requiring the primary carer to leave the UK would the force that British citizen to leave the European Economic Area (EEA).
Chen cases
The primary carer of an EEA national child who is exercising free movement rights in the UK as a self-sufficient person, where requiring the primary carer to leave the UK would prevent the EEA national child exercising those free movement rights.
Ibrahim and Teixeira cases
The child of an EEA national worker or former worker where that child is in education in the UK. The primary carer of a child of an EEA national worker or former worker where that child is in education in the UK, and where requiring the primary carer to leave the UK would prevent the child from continuing their education in the UK.
Dependent child aged under 18 of a primary career in one of the categories set out above
The dependent child of a primary carer where requiring that child to leave the UK would force the primary carer to leave the UK with them. A person who is claiming a derivative right of residence in a category above must meet the relevant conditions set out in the Immigration Rules.
Applying for derivative residency
To apply under the derivative rights of residency, you must follow the correct application process, submit the proof of residency and submit the biometrics information. You can apply for limited leave to enter/remain or indefinite leave to enter/remain in the UK, depending on how long you have lived in the UK.
As part of the immigration application, you must demonstrate that you are a person with a derivative right to reside in the UK. Evidences would need to be submitted as part of your application for leave to remain or indefinite leave.
In order to evidence that you meet the eligibility requirements of Part 1 of Appendix EU as a ‘person with a derivative right to reside’, you must submit documents as specified by the immigration rules, and demonstrate how you meet the requirements of the Immigration Rules.
Applying for indefinite leave to enter or remain
You will be able to apply for indefinite leave to enter or remain under the derivative residency. As part of the application, you will need to have completed 5 years continuous residency, have limited absences from the UK and satisfy the requirements of being a qualified person throughout the periods of residency in the UK.
Refusal of a derivative residence
If your application for derivative is refused, you will be able to appeal against the decision. You will have 14 days to lodge an appeal against the decision and the Home Office will reconsider their decision. The matter could be listed at the First Tier Tribunal.
When challenging against the refusal, you will be asked to complete the claim form, submit the legal grounds and evidences.
We recommend that you take some legal advice at first, to see whether the decision was reached correctly or not. You can email us a copy of the decision letter to info@icslegal.com.
As part of our process, we will advise whether you should appeal the decision or re-apply for the derivative residence application. We will explain our reasons on why you should either appeal or submit a new application.
Legal advice for the derivative application
Our UK Immigration Lawyers will provide you with the very best advice and most importantly putting your best interest at first.
Our commitment to you is:
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Provide clear, straightforward legal advice in a language you understand.
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A highly professional personal service.
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A friendly, caring and approachable team of UK Immigration Lawyers.
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Transparent costs with no hidden surprises.
It’s not that we think differently. It’s that we are different given our time in this industry. You can speak to one of our UK Immigration Lawyers on 0207 237 3388 or you can email us at info@icslegal.com.
Related FAQ's
Our speciality lies in the field of Immigration, Nationality and EU Law, so it means we always are dealing with this side of the law. We are able to support you in making a correct decision, avoid delays on your case, save money and time, not forgetting the stress of any doubts with your application.
There are many routes available to come to the UK, extend or switch, some of them do not allow extension or even switching. Knowing what is right can be a difficult task and this is why we are here. Simple task of not using the prescribed forms can mean your application is invalid, which means if you have no valid stay, you would have to return back and there is no appeal rights.
Our initial consultations are a chargeable service. We initially discuss the requirements of the application to ensure you meet the requirements and have the documentation required at hand for the submission. It gives you an opportunity to meet us and ask questions.
Each case will be checked thoroughly, everything will be cross referenced so guidelines are met and we will also add our legal document which would outline the Immigration Rules and how the client has satisfied the rules. We use documents that are used by Home Office case workers, so we know exactly what they would look for in your case.
The most important fact is that law constantly changes, policy guidelines and requirements are always changing, so it is best that you always use specialised services to support you. We never compromise our services, our fees remain very competitive but our expertise is at the very highest standard.
We place our clients first, so when you sign the customer care letter and we go through your case file, and we believe that the case would not be successful, we will terminate the agreement and return your documents. We will also provide alternative solutions with no added costs. We also have a cancellation period should you feel you want to withdraw your file.
Please note that all cases cannot be guaranteed as circumstances depends and whether you met guidelines, however the Home Office caseworker can still refuse cases on the balance of probabilities and other factors. Our job would be to prepare your case in the best possible way.
1) You contact us through e-mail or phone.
2) We take some basic information, we ask some relevant questions to understand the type of query and what type of support is required.
3) Your case then gets passed to a case worker.
4) Case Worker would contact you to set up an initial meeting.
5) You attend a consultation, an action plan is drawn up and we find out whether ICS Legal can support your case. A report would be sent where there is a requirement to outline what was discussed and what to do next.
6) You authorise us to be your legal representative by signing our customer care letter.
7) We will then start to request documents and information about your case this will build up your case pack.
8) We will then write our legal report and use Home Office caseworker’s documents to ensure everything has been checked and all requirement have been met.
9) Where possible we will go through every aspect of your case before case submission.
10) We will continue to update you throughout the case life cycle .