Derivative Right to Reside in the UK

Individuals who previously held a derivative right to reside in the UK must demonstrate continuous lawful residence under Regulation 16(1) of the EEA Regulations, along with the conditions outlined in subparagraphs (2), (3), and (4). This legal foundation is established through key judgments by the Court of Justice of the European Union, including Chen v Secretary of State (C-200/02), Ibrahim (C-310/08), and Teixeira (C-480/08).

To qualify under the derivative right to reside, applicants must provide evidence that they are the primary caregiver of either:

• An EEA national child who is self-sufficient and would be unable to remain in the UK without their carer regardless of whether the child held comprehensive sickness insurance;
  
  
• A child of an EEA national who has ceased employment or left the UK, provided the child remains enrolled in education in the UK.

The UK Home Office has issued detailed guidance on how such rights can be substantiated under the EU Settlement Scheme.

Individuals Previously Holding a Zambrano Right to Reside in the UK

Under UK immigration law, a “Zambrano” right to reside is a derivative form of residence granted to non-EEA nationals who are the primary carers of British citizen children or dependent adults. This right applies in situations where the British citizen would be compelled to leave the UK and effectively the European Economic Area (EEA) if their carer were forced to leave the country.

To qualify under this category, the applicant must have legally resided in the UK for a continuous qualifying period with a derivative right to reside, specifically under Regulation 16(1), in combination with paragraphs (5) and (6) of the EEA Regulations.

Eligibility Requirements Include:

You must demonstrate that you are the primary carer of:

• A British citizen child who would be compelled to leave the EEA if you were removed from the UK;
  
  
• A British dependent adult who would be unable to remain in the EEA without your care;
  
  
• A minor (under 18, or under 18 at the time of application under the EU Settlement Scheme) whose parent is a primary carer, eligible for a derivative residence card, and whose parent would have to leave the UK if the child were removed.
  
  

Exclusions from Eligibility

You will not qualify for a Zambrano-based application if:

• You possess the right of abode in the UK;
  
  
• You are exempt from immigration control;
  
  
• You currently hold any form of UK immigration status (limited or indefinite leave to enter or remain), unless it was granted under Appendix EU or is maintained under Section 3C of the Immigration Act 1971.

Furthermore, individuals who still have a right to reside under the EEA Regulations, or who are subject to removal, exclusion, or cancellation decisions under those Regulations (unless such decisions have been overturned or no longer apply), will also be ineligible.

Primary Carer – EUSS Eligibility Explained

You may be considered a primary carer under the EU Settlement Scheme (EUSS) if you are the main individual responsible for another person’s care, or you share this responsibility jointly, and you are either their legal guardian or a direct family member.

Direct family members recognised under this category include:

Biological or adoptive parents

Grandparents

Husband, wife, or civil partner

Biological or adopted children (excluding stepchildren)

Grandchildren

If you were previously granted a residence card or an EEA Family Permit under the former EEA Regulations based on your relationship as a direct relative, this will generally be accepted as proof in your EUSS application. If no such documentation exists, you must provide sufficient evidence of your relationship and your role as a carer.

EUSS Derivative Rights of Residence

To apply under the EUSS Derivative Rights of Residence route, applicants must submit a valid application using the designated paper form, which must be specifically requested from the EU Settlement Resolution Centre. Online submission is not available for this category.

Applicants are required to provide comprehensive documentation to prove that all eligibility conditions have been continuously met during their period of residence in the UK. In contrast to the previous EEA regulations, time spent in the UK under a derivative or Zambrano right to reside can now count towards acquiring settled status after five years of continuous lawful residence.

Additionally, all applicants must satisfy the Home Office’s suitability requirements to qualify under this immigration route.

The official deadline to apply for the EU Settlement Scheme was 30 June 2021. However, if you failed to submit your application on time, you might still be eligible to apply late, provided you can demonstrate reasonable grounds for the delay. This may apply in situations where you were unaware of the requirement due to holding a valid EEA residence document that extended beyond the deadline.

Link and Day Lawyers provide up-to-date legal insights and strategic support for those navigating late applications under the EU Settlement Scheme. Recent guidance outlines how applicants with legitimate reasons for delay such as medical conditions, lack of awareness, or existing valid documents may still qualify.

• Current policies on late EU Settlement Scheme applications
  
  
• Clarification on post-deadline eligibility
  
  
• Guidance on Surinder Singh route applications
  
  
• Best practices for avoiding delays in your submission
  
  
• Rights and immigration status of applicants after 30 June 2021
  
  

What Happens If Your EUSS Derivative Rights of Residence Application Is Refused?

In the event that your application under the EU Settlement Scheme (EUSS) for Derivative Rights of Residence is denied, you may be entitled to challenge the decision through an appeal to the First-tier Tribunal (Immigration and Asylum Chamber) or by requesting an administrative review. Seeking professional legal advice from Link and Day Lawyers can significantly strengthen your chances of a successful outcome during this process.

Zambrano Applications: Entering the UK as a Primary Carer of a British Citizen

As of 8 August 2023, the UK Government officially closed the EUSS Family Permit pathway for primary carers of British citizens under the Zambrano route. Individuals wishing to enter the UK under this category must now satisfy the standard Family Immigration Rules rather than relying on the previously available Zambrano provisions.

However, the Zambrano route under the EUSS remains valid for applicants who had already been granted a Family Permit before the closure date. Those who received an EUSS Family Permit based on a Zambrano application submitted before 8 August 2023 can still enter the UK and proceed to apply under the EU Settlement Scheme.

How Link And Day Lawyers Can Support You

Link and Day Lawyers, trusted immigration service providers, offer comprehensive support for individuals applying under the EU Settlement Scheme, including those seeking derivative rights of residence. Our team works closely with EU, EEA, and Swiss nationals and their family members to ensure that every application meets the necessary legal standards.

Whether you need strategic guidance on eligibility requirements, a detailed evaluation of your chances for success, or expert assistance in preparing your EUSS application or appeal, our professionals are here to assist you at every stage.

We are committed to delivering thorough, honest, and client-focused immigration services. At Link and Day Lawyers, we take the time to understand your specific circumstances, offering precise legal advice tailored to your needs in a respectful and responsive manner.