The Derivative Residence allows non-EEA family members to remain in the UK. A ‘person with a derivative right to reside’ can apply for settled status (indefinite leave to enter or remain in the UK) or pre-settled status (limited leave to enter or remain in the UK) under the Immigration Rules, enabled by the Immigration Act 1971.
‘Derivative rights’ are derived from wider EU law rather than from the Free Movement Directive 2004/38/EC and have been confirmed by CJEU judgments.
The Settlement Scheme separates the grounds of the application when made on the derivative rights of residency. As confirmation of a derivative right of residence, a person can apply for a derivative residence status which will be granted on the pre-settled status route if you have not completed 5 years residency or settled status, if you have completed the periods of residency in the UK.
Types of derivative rights of residence
A person may qualify for a derivative right of residence in one of the following categories:
Ibrahim and Teixeira cases.
So let’s look at those categories in brief:
The primary carer of a British citizen child or dependent adult, where requiring the primary carer to leave the UK would the force that British citizen to leave the European Economic Area (EEA).
The primary carer of an EEA national child who is exercising free movement rights in the UK as a self-sufficient person, where requiring the primary carer to leave the UK would prevent the EEA national child exercising those free movement rights.
Ibrahim and Teixeira cases
The child of an EEA national worker or former worker where that child is in education in the UK. The primary carer of a child of an EEA national worker or former worker where that child is in education in the UK, and where requiring the primary carer to leave the UK would prevent the child from continuing their education in the UK.
Dependent child aged under 18 of a primary career in one of the categories set out above
The dependent child of a primary carer where requiring that child to leave the UK would force the primary carer to leave the UK with them. A person who is claiming a derivative right of residence in a category above must meet the relevant conditions set out in the Immigration Rules.
Applying for derivative residency
To apply under the derivative rights of residency, you must follow the correct application process, submit the proof of residency and submit the biometrics information. You can apply for limited leave to enter/remain or indefinite leave to enter/remain in the UK, depending on how long you have lived in the UK.
As part of the immigration application, you must demonstrate that you are a person with a derivative right to reside in the UK. Evidences would need to be submitted as part of your application for leave to remain or indefinite leave.
In order to evidence that you meet the eligibility requirements of Part 1 of Appendix EU as a ‘person with a derivative right to reside’, you must submit documents as specified by the immigration rules, and demonstrate how you meet the requirements of the Immigration Rules.
Applying for indefinite leave to enter or remain
You will be able to apply for indefinite leave to enter or remain under the derivative residency. As part of the application, you will need to have completed 5 years continuous residency, have limited absences from the UK and satisfy the requirements of being a qualified person throughout the periods of residency in the UK.
Refusal of a derivative residence
If your application for derivative is refused, you will be able to appeal against the decision. You will have 14 days to lodge an appeal against the decision and the Home Office will reconsider their decision. The matter could be listed at the First Tier Tribunal.
When challenging against the refusal, you will be asked to complete the claim form, submit the legal grounds and evidences.
We recommend that you take some legal advice at first, to see whether the decision was reached correctly or not. You can email us a copy of the decision letter to firstname.lastname@example.org.
As part of our process, we will advise whether you should appeal the decision or re-apply for the derivative residence application. We will explain our reasons on why you should either appeal or submit a new application.
Legal advice for the derivative application
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