Free Movement Rights: derivative rights of residence
A person who does not qualify for a right of residence under the Free Movement of Persons Directive 2004/38/EC(the Free Movement Directive) may qualify for another right of residence under European Union (EU) law. These are known as 'derivative rights' because they come from (or are 'derived' from) other instruments of EU law, and not from the Free Movement Directive.As confirmation of a derivative right of residence, a person can apply for a derivative residence card which has the same appearance as a residence card.
Types of derivative rights of residence
A person may qualify for a derivative right of residence in one of the following categories:
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).
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 (European Economic Area) Regulations 2016(the 2016 regulations) to qualify for this right.In line with the Immigration (Provision of Physical Data) Regulations 2006 (as amended), from 6 April 2015 a non-EEA national applying for a derivative residence card will have to enrol their biometrics in order to be issued a document confirming their right to reside in the UKunder EU law.
Any references to a derivative residence card in this document should be taken to also mean a document issued in a biometric format.
In line with the Free Movement of Persons Directive 2004/38/EC(the Free Movement Directive), a European Economic Area (EEA) national self-sufficient child has a right of residence in a member state where that child:
Regulation 4(3) of theImmigration (European Economic Area) Regulations 2016(the2016 regulations)requires the theChen child to have sufficient resources and CSI to cover all of their dependent family members (although these resources and CSI could be held by the family members themselves).For further guidance on CSI see the comprehensive sickness insurance part of the Qualified person guidance.
If a child meets these requirements, they can apply for a registration certificate as confirmation of this right, although this is not mandatory.
Considering Chen cases
There are 5 stages you must consider when assessing whether a person has a derivative right of residence on the basis of Chen:
stage 1: EEA national child: assessing whether the child is an EEA national under the age of 18
stage 2: self-sufficiency: assessing whether the child is self-sufficient
stage 3: direct relative or legal guardian: assessing whether the person claiming to have a derivative right is a direct relative or legal guardian of the child
stage 4: primary carer: assessing whether the direct relative or legal guardian is the primary carer of the child
stage 5: EEA child unable to remain in the UK: assessing 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: public policy, public security and public health: assessing that there are no grounds of public policy, public security or public health that should prevent the issue of a derivative residence card
You must refuse an application if the conditions are not met. For example, if the applicant provides the passport of their EEA national child which is either forged or counterfeit you can refuse the application on that basis without going to the next stage of the consider ration process.However, where you are satisfied a person has met the requirements of stage one, a full consideration of all the stages should be undertaken. This will ensure a more robust decision, which has considered all the facts of the case, has been undertaken. Cases, where this is not considered appropriate, must be referred to a senior caseworker.If you need more information to establish a person’s derivative right of residence, you may: