New Guidance Published for EUSS ‘Derivative Right to Reside’
In February 2023, the Home Office issued updated guidance to clarify whether an applicant meets the requirements for a ‘derivative right to reside.’
What is a derivative claim?
A person who does not qualify for residence under the Free Movement Directive may still be eligible to reside in the UK. This is called a ‘derivative right,’ because it comes from other sources of EU regulations and directives (not the Free Movement Directive itself).
Examples of those who have a derivative claim:
In deciding the cases of Chen, Ibrahim and Teixeira, the Court of Justice of the European Union (CJEU) collectively confirmed instances in which someone would be deemed to have a ‘derivative right to reside’ under EU Law. These examples include:
- Chen showed that the primary carer of a self-sufficient EEA citizen child is entitled to a right to reside under EU law, if refusal results in the child having to leave the UK.
- Ibrahim and Teixeira proved that the child of a former EEA citizen worker (or children with a primary carer who cannot leave the UK for uncertain periods of time) can stay in the UK to continue their education.
- The case of Zambrano, which followed, confirmed that a non-EEA parent of a British child may be able to stay in the UK, if it is the only way to ensure that the child stays in the UK and/or EEA. This case law has helped established that there is a derivative right to reside.
How can someone make a derivative right to reside claim under the EUSS?
To qualify for a ‘derivative right to reside,’ under the EU Settlement Scheme, an applicant must show the Secretary of State for the Home Department (SSHD) that they were a resident for a continuous period in the UK before 11pm GMT on 31 December 2020 (or, if the applicant is a relevant EEA family permit case, 11:59 GMT on the date they came to the UK).
They must also show that they are not currently subject to a decision under EEA Regulations.
AND:
- They are the primary carer of an EEA citizen under age 18; OR
- They are in education in the UK, and they and their EEA citizen parent(s) have resided in the UK during the same time, and during that time the parent(s) were working or self-employed in the UK; OR
- They are the primary carer of a person who meets the requirements of B; OR
- They are under age 18 (unless they were previously granted limited leave to enter or remain under rule EU3 of Appendix EU, and they were under 18 at the time), and their primary carer meets the requirements of A or C above.
These requirements are in addition to the suitability requirements.
EUSS Deadline
All applicants for pre-settled or settled applications under the EUSS must have been made by 30 June 2021.
However, applications are still able to be considered providing an applicant either:
- Meets one of the criteria for a later deadline to apply:
- the family member of someone from the EU, Switzerland, Norway, Iceland or Liechtenstein who was living here by 31 December 2020, and had settled or pre-settled status, and you join them in the UK on or after 1 April 2021
- applying for your child, who was born or adopted in the UK on or after 1 April 2021
- the family member of an eligible person of Northern Ireland, but they could not move back to the UK by 31 December 2020 without you – you must be from outside the EU, Switzerland, Norway, Iceland or Liechtenstein
- exempt from immigration control, or you stopped being exempt from immigration control after 30 June 2021
- here with limited leave to enter or remain in the UK (for example, if you’re here on a work or study visa) which expires after 30 June 2021
- a family member of a British citizen who you lived with in the EU, Switzerland, Norway, Iceland or Liechtenstein – you must have lived with them in that country by 31 December 2020, and returned to the UK with them
- If you were their family member by 31 December 2020 (this does not apply to children born or adopted after this date) and the family relationship still exists when you apply
- Has “reasonable grounds” for not applying by 30 June 2021
- where a parent, guardian or Local Authority has failed to apply on behalf of a child
- where a person has or had a serious medical condition, which meant they were unable to apply by the relevant deadline
- where someone is a victim of modern slavery or is in an abusive relationship
- where someone is isolated, vulnerable or did not have the digital skills to access the application process
- where a person was unable to apply by the relevant deadline for compelling practical or compassionate reasons – including in light of the coronavirus pandemic
If you require any further information, please call us on 0208 995 3556
By Tiffany