EEA Visa under Primary Care – Derivative Rights
A primary carer (ie 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”. 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.
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.
Unlike other kinds of leave under European law, leave under derivative rights does not contribute towards leave for permanent residence, and migrants with such leave are not able to bring other dependants into the UK.