A person with a derivative right to reside in the UK is able to apply for Settled Status or Pre-Settled-Status under the EU Settlement Scheme.
These rights are based on case law of the European Court of Justice and were then implemented by the UK in the EEA Regulations (which now no longer have force).
Person Who Had a Derivative Right to Reside
A person who had a derivative right to reside in the UK must have been resident for a continuous qualifying period in the UK with a right to reside by virtue of regulation 16(1) of the EEA Regulations in conjunction with subparagraphs (2), (3) and (4). This is based on the case law in Chen; and Ibrahim/Teixeira.
You will be required to to show that you are:
- The primary carer of:
- A child from the EEA who is financially independent (regardless of whether they had comprehensive sickness insurance cover in the UK) who would have to leave the UK if you left the UK;
- The child of an EEA national who stops working in the UK or leaves the UK if you are in education in the UK;
Person Who Had a Zambrano Right to Reside
A person who had a derivative right to reside must have been resident for a continuous qualifying period in the UK with a right to reside by virtue of regulation 16(1) of the EEA Regulations in conjunction with subparagraphs (5) and (6).
You will be required to to show that you are:
- The primary carer of:
- a British child who would have to leave the EEA if you left the UK; or
- a British dependent adult who would have to leave the EEA if you left the UK; or
- The child of a primary carer in circumstances where:
- you are under the age of 18 (or were when you first applied under the Settlement Scheme); and
- the primary carer is eligible for a derivative residence card; and
- your parent would have to leave the UK if you left the UK
The EU Settlement Scheme currently only allows an application to be made where the person does not have any other form of leave to enter or remain in the UK under the Immigration Rules – for example as the parent of a British child in Appendix FM.
However, the High Court recently decided that this was unlawful and held that Zambrano carers can make an application even if they currently have leave to remain on a different basis. The Home Office has agreed to reconsider the content of Appendix EU and the guidance
