EEA Derivative Rights – Zambrano, Ibrahim, Teixeira and Chen

EEA rights refer to the free movement rights that exist for countries within the EEA. If an individual does not qualify for a right of residence under the 2004 Citizens/Free Movement Directive – for example as a worker, job-seeker or student – they may qualify through rights derived from other sorts of EU law. These are rights than have been established outside of the Directive, such as case law.

Derivative rights are in most cases for adult carers and are linked to the rights of residence of a British or EEA national child. It is important to note that a person who claims derivative rights is categorised as not qualifying for a right of residence under the Directive, and in some situations better rights under the Directive might be arguable. It is therefore advisable to get legal advice before deciding to claim derivative rights.

The types of derivative residence rights are as:

• Zambrano carers
• Chen carers
• Ibrahim and Teixeira cases

The UK law which reflects the legal rights flowing from both the Citizens Directive and other sources is contained in the Immigration (EEA) Regulations 2016.

Someone who has derivative rights will not qualify for EU permanent residence after 5 years.  In addition, this type of permission to reside will not be included towards continuous residence for the purposes of settlement under the long residence immigration route. Derived rights are at risk of termination when children turn 18 or become independent.

However, those with derivative residence can make an application under the EU Settlement Scheme (please see below), which could lead to settled status.

Chen and Ibrahim/Teixeira carers could apply under the EUSS from 30 March 2019. Those with a Zambrano right of residence can apply under the EUSS from 1 May 2019. The application will need to be made on a paper form. Applicants will need to contact the Home Office to ask for a form, which will be provided on a case-by-case basis. The application is free.

Applicants who have completed a ‘continuous qualifying period’ of five years, can apply for indefinite leave to remain (settled status). Applicants with under five years’ residence should be given limited leave to remain (pre-settled status).

Not much information has been given about what documents will need to be submitted with EUSS applications to show that applicants have derivative rights. More guidance about applying under the EUSS as a person with a Zambrano right to reside will be published by the government on or around 1 May 2019.

People who are granted settled status under the EUSS will be entitled to benefits. It is currently unclear whether people who are granted pre-settled status and who do not otherwise qualify for benefits (for example, with a right to reside under the EEA Regulations) will be eligible to receive benefits.

A Zambrano carer is the non-EEA national primary carer of a British citizen who is residing in the UK, and who has a right to reside if their removal from the UK would require the British citizen child to leave the UK and the EU.

Zambrano carers do not have access to public funds and cannot apply to have access to those public funds. However, a Zambrano carer who has been granted settled status under the EU settlement scheme should be able to access public funds.

When applying for a derivative residence card as a Zambrano carer, the most important issues will be:

• Proving the British citizenship of the child;
• Showing that the carer is a direct relative or legal guardian,
• Showing that the carer is the primary carer,
• Showing that the British citizen child would be forced to leave the EEA area if residence rights were not granted to the primary carer, and
• Showing that there are no grounds of public policy, security or public health which suggest that a right of residence should not be accepted.

A Chen carer is a primary carer of a self-sufficient EEA national child. The child must have sufficient resources to prevent them becoming a burden on the social assistance system, and have comprehensive sickness insurance. The child is entitled to be accompanied by their primary carer who will have a derivative right of residence. The child must be under the age of 18.

The child can show that they are self-sufficient by relying on the income of their primary carer, although that income should come from lawful employment. This can lead to complicated circumstances – if a primary carer has lawful status in the UK already, there is not an issue. However, if the parent or carer seeks to rely on income, it may depend on whether the child was self-sufficient before the work started.

Ibrahim and Teixeira cases involve either the child of an EEA national worker/former worker where that child is in education in the UK or the primary carer of a child of an EEA national worker/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.

The child must have lived in the UK when the EEA national was a worker in the UK – the child does not necessarily have had to be in education while the EEA parent was a worker. The ‘child’ does not have to be a minor – derivative rights in Ibrahim and Teixeira cases continue for as long as the child or young person is in full-time education. These rights can also apply to children who are separated from their parents.

Education does not include nursery education but can include education received before compulsory school age – where a child has entered into the reception class.