EU SETTLEMENT SCHEME DERIVATIVE RIGHTS OF RESIDENCE

Individuals with derivative rights to reside in the UK can apply for Settled Status or Pre-Settled Status under the EU Settlement Scheme.

These rights are grounded in European Court of Justice case law and were incorporated into UK law via the EEA Regulations, which ceased to be in force after 31 December 2020.

Eligibility Criteria

Derivative Right to Reside

To qualify, applicants must have continuously resided in the UK with a right to reside under Regulation 16(1) of the EEA Regulations, along with subparagraphs (2), (3), and (4), based on case law including Chen [2004] EUECJ C-200/02, Ibrahim C-310/08, and Teixeira C-480/08.

Applicants must demonstrate that they are:

• The primary carer of:

  • An EEA child who is financially independent and would have to leave the UK if the carer left.

  • The child of an EEA national who ceased working or left the UK while the child is in education in the UK.

The Home Office provides extensive guidance on how to evidence these rights under the EU Settlement Scheme.

Zambrano Right to Reside

These rights apply to primary carers of British citizen children or dependent adults who would need to leave the EEA if the carer left the UK. Applicants must have resided continuously in the UK under Regulation 16(1) of the EEA Regulations, with subparagraphs (5) and (6).

Applicants must show that they are:

• The primary carer of:

  • A British child who would have to leave the EEA if the carer left.

  • A British dependent adult who would have to leave the EEA if the carer left.

  • A child under 18 when first applying under the Settlement Scheme, whose primary carer is eligible for a derivative residence card, and whose parent would have to leave the UK if the child left.

  
  

Ineligibility

Applicants are not eligible if they:

• Have the right of abode.

• Are exempt from immigration control.

• Hold any form of leave to enter or remain in the UK, unless it was granted under Appendix EU or is effective under section 3C of the Immigration Act 1971.

• Continue to have a right to reside under the EEA Regulations or are subject to a removal, cancellation, or exclusion decision under those Regulations, unless the decision has been set aside or no longer has effect.

Application Process

To apply under these routes, request a paper form from the EU Resolution Centre. Evidence must be provided to show that the conditions were met throughout the period of residence. Time spent in the UK under these rights can now count towards permanent residence (after five years of continuous residence).

Deadlines and Late Applications

The application deadline was 30 June 2021. Late applications may be accepted if reasonable grounds for missing the deadline are provided. This includes holding a valid document issued under the EEA Regulations beyond this date and being unaware of the need to apply to the EU Settlement Scheme.

Primary Carer Definition

A 'primary carer' is defined as the main carer or a shared responsibility carer who is a direct relative or legal guardian. Direct relatives include:

• Parents

• Grandparents

• Spouses or Civil Partners

• Children (including adopted children but not stepchildren)

• Grandchildren

Previous issuance of a residence card or an EEA Family Permit under the EEA Regulations as a direct relative will be accepted in an EUSS application. Otherwise, evidence of the relationship must be provided.

Refusals and Appeals

If refused, applicants have a right of appeal to the First-tier Tribunal (Immigration & Asylum Chamber) or can seek an administrative review.

Changes as of 8 August 2023

The EUSS Family Permit for primary carers of British citizens (Zambrano route) closed on 8 August 2023. Applicants now must meet the family Immigration Rules applicable to others. The EUSS Family Permit Zambrano route remains open for those already on it.

How Our UK Immigration Lawyers in Switzerland Can Help

Through the Swiss office of our UK immigration law firm, we are delighted to offer a comprehensive range of UK immigration legal services to Swiss citizens (and non-Swiss citizens) residing in Switzerland.

Our immigration lawyers assist EU, EEA, and Swiss citizens and their families with EU Settlement Scheme applications. We offer expert advice, independent assessments, and professional assistance with applications and appeals.

We are committed to providing clear and reliable immigration advice tailored to our clients' needs. Contact our EU Settlement Scheme lawyers at +41 21 588 07 70 or complete our enquiry form below for more information.