EEA Visa under Primary Care – Derivative Rights
- EEA Visa under Primary Care – Derivative Rights
- Derivative Residence Card – General Overview
- Who can apply for Derivative Rights of Residence?
- Permanent Residence Under Derivative Residence Card
- EEA Derivative Rights fees
- Processing Times
- Rights of Appeal for Derivative Residence Card
- Applying for EEA Derivative Residence Card
A primary carer (i.e. a person who is the main or only carer for somebody) and the person who is cared for may be able, under some circumstances, to acquire leave under European law under the principle of “derivative rights” and apply for Derivative Residence Card. The carer must be a close relative or legal guardian of the person who is cared for.
This is a complex area of law and it covers people in various different situations.
For example, a non-EEA national marries an EEA national and they have a child together in the UK. The marriage subsequently breaks down and the EEA national leaves the UK and the non-EEA national is left as the primary carer of the child. In this situation, both the child and the non-EEA national might be able to acquire leave in the UK under European law under derivative rights principles.
Another example could be where a non-EEA national marries a British citizen and they have a child together in the UK, and the child is thus a British citizen. The marriage subsequently breaks down, the British parent disappears, and the non-EEA national is left as the primary carer of the child.
Derivative Residence Card – General Overview
The non-EEA national might be able to acquire leave under European law derivative rights principles if they could show that there would be nobody else in the UK to look after the child, and so the child would not be able to continue to live in the UK if the non-EEA national had to leave the UK.
There are also circumstances where derivative rights can be acquired when a primary carer cares for an adult.
Derivative right of residence is acquired as a matter of fact. In a similar way as with a standard EEA Residence Card for direct family members, it is not required by law to hold a document to confirm that right. For people with derivative rights of residence, it may, nonetheless, be useful to apply for a derivative residence card to hold it as a confirmation of their right. This may help to show their:
- right to reside in the UK
- right to enter or re-enter the UK
- entitlement to take up employment in the UK
- right to rent in the UK
Who can apply for Derivative Rights of Residence?
There are four main situations where a person may qualify for a derivative right of residence. The requirements and documents will vary based on the route the applicant falls under.
- Derivative rights based on Zambrano judgment
- Derivative rights based on Chen judgment
- Rights based on Ibrahim and Teixeira judgment
- Rights based on being a dependant child under 18 of someone with derivative rights of residence above
You may qualify for a derivative right of residence if you are a primary carer of a British national child or adult. This applies to situations where a British national will be forced to leave the EEA should the primary carer be required to leave the UK.
Important change has been made to this route in 2019. It is now mandatory for applicants to apply under UK Immigration Rules, if that option is available. A consultation with one of our Immigration Lawyers is strongly advised for those applications.
Applications for a derivative residence card under Chen judgment can be made where the child is an EEA national. An application is then submitted by a primary carer of a child who is an EEA national self-sufficient person, where requiring a non-EEA applicant to leave the UK will prevent the child from exercising their rights.
The main difference between Chen and Zambrano rights, is that under Chen the “sponsor” can only be a child. And, secondly, that the child must be an EEA national self-sufficient person, not a British national.
Ibrahim and Teixeira Rights
The rights under this subcategory are for primary carers of an EEA national child of an EEA national worker or former worker. The child must be in education in the UK. Requiring a primary carer to leave should also force the child to stop their education in the UK.
Dependant children under 18 of primary carers in categories above
The derivative rights of residence can also apply to dependant children under 18 of primary carers in the categories above. It is applicable to situations where requiring a dependant child to leave the UK will also force a primary carer to leave the UK with them.
Permanent Residence Under Derivative Residence Card
Unlike other kinds of leave under European law, leave under derivative rights does not contribute towards leave for an EEA permanent residence, and migrants with such leave are not able to bring other dependants into the UK.
There may be an option to apply for settled status after 5 years. Certain applicants may also be able to switch into the route under UK Immigration Rules that will lead to settlement. Derivative rights of residence holders may qualify for ILR on a 10 year basis, after residing in the UK lawfully for 10 years.
EEA Derivative Rights fees
It costs £65 per applicant to make an application for a derivative rights residence card. An application for a settled/pre-settled status is currently free of charge.
Standard processing times for derivative rights applications is 6 months. Most applications are decided by the Home Office in 2-3 months.
Rights of Appeal for Derivative Residence Card
If your application is refused, you will normally get a full right fo appeal. To appeal refusal of your derivative residence card, you will need to lodge the appeal with the Immigration Tribunal. Contact our immigration lawyers for expert legal assistance with lodging and preparing your appeal.
Applying for EEA Derivative Residence Card
The application will need to be submitted using the form DRF1. You will also need to provide appropriate supporting evidence based on the route you apply under.
Our experienced team of London immigration lawyers has extensive experience with EEA applications. Contact us today to speak to us regarding your derivative residence card application. We can help with initial applications, extensions, switching and appeals.
For more information on applications under EU law, please visit our EU immigration page.
A derivative residence card is issued to non-EEA nationals whose rights “derive” from EU nationals living in the UK. It mostly refers to primary carers of EU / British children.
What application form must be used?
Applications for a Residence Card based on derivative rights must be submitted using the form DRF1.
How long will the Residence Card be issued for?
The Residence Card on the basis of derivative rights is usually issued for a period of 5 years or until the “sponsor” child turns 18.
Can I work on a derivative residence card?
Derivative rights holders are allowed to work in the UK.
Application fee for a derivative residence card
The application fee is currently £65. Applications under settled/pre-settle scheme are free of charge.
Our EEA Derivative Residence Card Services Review
Contact our London based Immigration Lawyers if you need any help with your Derivative Rights application. Call us on 020 7439 3000 or use our contact form to get in touch with us regarding your application. You can start by booking a consultation with one of our EEA immigration experts so that we can assess your case and help you make a valid Derivative Rights of Residence application.