Derivative Residence Card As A Primary Carer
For individuals from outside of the European Economic Area (EEA) who have the right to live in the UK through an EU/EEA family member (who is living in the UK), the UK ‘Derivative Residence Card’ can be seen as something of a ‘belt and braces' approach to protecting your immigration status. This is because your right to reside in the UK already exists, but having a Derivative Residence Card means you can more easily prove your legal status if you ever need to. As such, apply for a Derivative Residence Card is not like applying for a visa which provides you with the right to be in the UK; rather, the Derivative Residence Card confirms your status.
In this article, we will explain what the Derivative Residence Card is, who can apply for one, and the process which is followed by the Home Office.
What Is The Derivative Residence Card?
The word 'derivative' is used here because the rights of the Derivative Residence Card holder are 'derived' (i.e. they come from) from the EU/EEA national living in the UK. According to the Home Office guidance on 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 2004/38/EC (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 (European Economic Area) Regulations 2016 (the 2016 regulations)”. In this sense, an exempt person is one who:
- has a right to reside in the UK as a result of any other provision of the 2016 regulations (such as a person exercising free movement rights as a European Economic Area (EEA) national)
- has British citizen
- has indefinite leave to enter or remain in the UK
The Derivative Residence Card is commonly granted to primary carers (who are close relatives or legal guardians) of British children, or those from the EU.
What Are The Different Scenarios Which May Give Derivative Rights?
There are a number of different application types under which a person can acquire derivative rights to live in the UK. These are as follows:
A Zambrano application
The principle of Zambrano is based on the 2011 case of Gerardo Ruiz Zambrano v Office national de l’emploi from EU law. This principle means that the primary carer of a British citizen child will have the right to reside in the UK under EU law if the child would otherwise be compelled to leave the UK if the primary carer cannot stay.
When assessing a Zambrano application, the Home Office case officer will follow five steps, as follows:
- stage 1: ensure the child is a British citizen
- stage 2: check whether the person claiming a derivative right is the direct relative or legal guardian of the British citizen
- stage 3: assess whether the direct relative or legal guardian is the primary carer of the British citizen
- stage 4: verify whether the British citizen would be forced to leave the EEA
- stage 5: check that there are no grounds of public policy, public security or public health that should prevent the issue of a derivative residence card
A Chen application
In the case of Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, it was established that the primary carer of an EEA national child who is exercising free movement rights in the UK as a self-sufficient person can acquire derivative rights of residence if requiring the primary carer to leave the UK would prevent the EEA national child exercising their free movement rights. In other words, a Chen carer can apply for a derivative residence card as a primary carer of a self-sufficient EEA national child.
When assessing a Chen application, the Home Office case officer will follow six steps, as follows:
- stage 1: check that the child is an EEA national under the age of 18
- stage 2: check that the child is ‘self-sufficient’
- stage 3: ensure the person claiming to have a derivative right is a direct relative or legal guardian of the child
- stage 4: ensure the direct relative or legal guardian is the primary carer of the child
- stage 5: verify whether the EEA national child would be unable to remain in the UK if the primary carer was required to leave the UK
- • stage 6: assess that there are no grounds of public policy, public security or public health that should prevent the issue of a derivative residence card
Ibrahim and Teixeira applications
Under the caselaw established in Ibrahim and Teixeira, the primary carer of a child of an EEA national worker or former worker may be able to acquire derivate residence rights where the child is in education in the UK, and where requiring the carer to leave the UK would prevent the child from continuing that education.
When assessing an Ibrahim and Teixeira application, the Home Office case officer will follow seven steps, as follows:
- stage 1: check if the child is the child of an EEA national
- stage 2: confirm that the child lived in the UK at a time when the EEA national was a worker
- stage 3: confirm the child is in education
- stage 4: if the person is applying as a primary carer, check they are a direct relative or legal guardian
- stage 5: assess whether the direct relative or legal guardian is the primary carer
- stage 6: assess whether the child would be unable to continue to remain in education if the primary carer was required to leave the UK for an indefinite period
- stage 7: assess that there are no grounds of public policy, public security or public health that should prevent the issue of a derivative residence card
It must be stressed that this is a complex area of law and knowing which route to rely on to acquire derivative residence rights, and subsequently a derivative residence card, requires a careful assessment of your situation and that of the child being cared for. An immigration lawyer will be able to advise you of the best route for your circumstances, ensuring you have the best chance of securing the immigration status you need to care for the child in the UK.
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