EU Settlement Scheme: derivative right to reside (Chen and Ibrahim/Teixeira cases) (accessible)

Question 1

About this guidance

Accepted Answer

This guidance tells you how, from 12 April 2023, to consider whether an applicant to the EU Settlement Scheme is a ‘person with a derivative right to reside’ as defined in the Immigration Rules for the scheme contained in Appendix EU to the Immigration Rules.

For convenience this guidance generally uses the present tense. However, it is important you apply the guidance to the relevant period relied upon.

Question 2

The best interests of the child

Accepted Answer

The duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of a child under the age of 18 in the UK, together with Article 3 of the UN Convention on the Rights of the Child, means that consideration of the child’s best interests must be a primary consideration, but not the only consideration, in immigration cases. This guidance and the Immigration Rules it covers form part of the arrangements for ensuring that we give practical effect to these obligations.

Where a child or children in the UK will be affected by the decision, you must have regard to their best interests in making the decision. You must carefully consider all the information and evidence provided concerning the best interests of a child in the UK and the impact the decision may have on the child.

Although the duty in section 55 only applies to children in the UK, the statutory guidance – Every Child Matters – Change for Children – provides guidance on the extent to which the spirit of the duty should be applied to children overseas. You must adhere to the spirit of the duty and make enquiries when you have reason to suspect that a child may be in need of protection or safeguarding, or presents welfare needs that require attention. In some instances, international or local agreements are in place that permit or require children to be referred to the authorities of other countries and you are to abide by these and work with local agencies in order to develop arrangements that protect children and reduce the risk of trafficking and exploitation.

Further guidance can be found in paragraphs 2.34 to 2.36 of the statutory guidance.

For further guidance on how to deal with applications concerning children, see:

‘Applications in respect of children’ in ‘EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members’.

Question 3

Contacts

Accepted Answer

If you have any questions about this guidance and your line manager or senior caseworker cannot help you, or you think that the guidance has factual errors, then email the EEA Citizens’ Rights & Hong Kong Unit.

If you notice any formatting errors in this guidance (broken links, spelling mistakes and so on) or have any comments about the layout or navigability of the guidance, then email the Guidance Rules and Forms Team.

Question 4

Publication

Accepted Answer

Below is information on when this version of the guidance was cleared:

version 6.0
published for Home Office staff on 12 April 2023

Question 5

Changes from last version of this guidance

Accepted Answer

Changes have been made to reflect the changes to Appendix EU made in Statement of Changes in Immigration Rules HC 1160, laid on 9 March 2023.

EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members

Appendix EU to the Immigration Rules

Statement of Changes in Immigration Rules HC 1160

Section 55 of the Borders, Citizenship and Immigration Act 2009 Every Child Matters – Change for Children

Question 6

Introduction

Accepted Answer

A ‘person with a derivative right to reside’ can apply to the EU Settlement Scheme: also referred to in this guidance as ‘the scheme’.

Such persons are often described as ‘Chen’ or ‘Ibrahim and Teixeira’ cases. A derivative right to reside in such cases was derived from wider EU law rather than the Free Movement Directive 2004/38/EC and was confirmed by the Court of Justice of the European Union (CJEU) judgments of those names: Chen and others (Free movement of persons) [2004] EUECJ C-200/02, Ibrahim C-310/08 and Teixeira C- 480/08. In summary, Chen cases concern the primary carer of a self-sufficient European Economic Area (EEA) citizen child in the UK (and under-18 dependants of the primary carer) and Ibrahim and Teixeira cases concern a child in education in the UK of an EEA citizen former worker (or, in line with the citizens’ rights agreements, self-employed person) in the UK and the child’s primary carer (and under-18 dependants of the primary carer).

Derivative rights to reside in the UK ceased to exist at the end of the post-EU exit transition period at 11pm Greenwich Mean Time (GMT) on 31 December 2020.

However, Chen and Ibrahim and Teixeira cases are covered by the Withdrawal Agreement with the EU and the citizens’ rights agreements with the other EEA countries and Switzerland. Those agreements protect their previous right to reside under EU law, which did not include the right to acquire the right of permanent residence. Nevertheless, the UK decided as a matter of more generous domestic provision to provide those with such a right to reside in the UK by the end of the transition period with access to the EU Settlement Scheme, which includes the scope for them to obtain indefinite leave to enter or remain in the UK.

The scheme makes separate provision for those with a derivative right to reside based on the CJEU judgment in Zambrano. From 1 May 2019, a ‘person with a Zambrano right to reside’ has been able to apply under the scheme. Separate guidance – EU Settlement Scheme: a person with a Zambrano right to reside – must be used to consider such applications.

The EU Settlement Scheme is contained in Appendix EU to the Immigration Rules. This guidance is to be read in conjunction with EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members, in particular as to the requirements for the making of a valid application: see the section in that guidance on ‘Making an application: validity’. These requirements are that:

the application has been made using the required application process (which, in the case of a ‘person with a derivative right to reside’, is the required paper application form)
the required proof of identity and nationality (or of entitlement to apply from outside the UK, where the application is made outside the UK) has been provided
the required biometrics have been provided

Where you have established that the applicant has made a valid application and, using this guidance, is a ‘person with a derivative right to reside’, you must then use EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members to determine whether they have either:

completed a continuous qualifying period of 5 years and so are to be considered for indefinite leave to enter or remain
completed a continuous qualifying period of less than 5 years and so are to be considered for limited leave to enter or remain

Where this guidance refers to the ‘specified date’, this means the end of the transition period at 11pm GMT on 31 December 2020 (unless the applicant is a ‘relevant EEA family permit case’).

Where the applicant is a ‘person with a derivative right to reside’ who falls within the definition of a ‘relevant EEA family permit case’ in Annex 1 to Appendix EU, ‘specified date’ means, for the purposes specified in that definition, 1159pm GMT on the date they arrived in the UK.

Where this guidance refers to a ‘supervening event’, this means that, at the date of application, either:

the person has been absent from the UK and Islands for a period of more than 5 consecutive years at any point since they last either:
completed a continuous qualifying period of 5 years
acquired the right of permanent residence in the UK under regulation 15 of the EEA Regulations
acquired the right of permanent residence in the Islands through the application there of section 7(1) of the Immigration Act 1988 (as it had effect before it was repealed) or under the Immigration (European Economic Area) Regulations of the Isle of Man
any of the following events has occurred in respect of the person, unless it has been set aside or revoked:
any decision or order to exclude or remove them from the UK under regulation 23 or 32 of the EEA Regulations (or under equivalent provisions of the EEA Regulations of the Isle of Man)
a decision to which regulation 15(4) of the EEA Regulations otherwise refers in respect of their right to permanent residence in the UK, unless that decision arose from a previous decision under regulation 24(1) (or the equivalent decision, subject to the equivalent qualification, under the Immigration (European Economic Area) Regulations of the Isle of Man)
an exclusion decision
a deportation order, other than by virtue of the EEA Regulations
an Islands deportation order
an Islands exclusion decision

Where this guidance refers to the ‘EEA Regulations’, it means (as defined in Annex 1 to Appendix EU) either:

(where relevant to something done before 11pm GMT on 31 December 2020) the Immigration (European Economic Area) Regulations 2016 (as they had effect immediately before that date and time)
(where relevant to something done after 11pm GMT on 31 December 2020 and before 1 July 2021) the Immigration (European Economic Area) Regulations 2016 (as, despite the revocation of those Regulations, they continued to have effect, with specified modifications, by virtue of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020)
(where relevant to something done on or after 1 July 2021) the Immigration (European Economic Area) Regulations 2016 (as they had effect immediately before they were revoked and, where the context requires it, on the basis that those Regulations had not been revoked)

EEA and Swiss citizens (defined, together with certain others, such as certain dual British and EEA citizens, in Annex 1 to Appendix EU, and referred to in this guidance, as an ‘EEA citizen’) resident in the UK by the specified date can rely on their own continuous qualifying period of residence in order to qualify for leave under the EU Settlement Scheme. As a result, an applicant who needs to rely on the derivative rights provisions is likely to be a non-EEA citizen.

Reference in this guidance to ‘the Islands’ means the Bailiwick of Guernsey, the Bailiwick of Jersey or the Isle of Man.

Question 7

Relevant EEA family permit case

Accepted Answer

A ‘relevant EEA family permit case’ in the context of this guidance is either:

a person with a derivative right to reside who arrived in the UK after 11pm GMT on 31 December 2020 and by 30 June 2021 with a valid EEA family permit issued under the EEA Regulations on the basis of a valid application made under the EEA Regulations before 11pm GMT on 31 December 2020
a person with a derivative right to reside who arrived in the UK after 11pm GMT on 31 December 2020 with an entry clearance in the form of an EU Settlement Scheme family permit granted under Appendix EU (Family Permit) on the basis they met the definition in Annex 1 to that Appendix of ‘specified EEA family permit case’

Question 8

Applications to switch from pre-settled to settled status

Accepted Answer

Where a person with limited leave to enter or remain granted under Appendix EU (known as ‘pre-settled status’ under the EU Settlement Scheme) as a ‘person with a derivative right to reside’ makes a valid application under Appendix EU for indefinite leave to enter or remain (known as ‘settled status’ under the scheme) as such a person (or as a ‘person who had a derivative or Zambrano right to reside’), you do not need to revisit the basis on which that limited leave was granted, but need only consider the eligibility and suitability requirements relevant to the period since then.

EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members EU Settlement Scheme Family permit and Travel permit

Chen and others (Free movement of persons) [2004] EUECJ C-200/02 Ibrahim C-310/08

Teixeira C-480/08

Immigration (European Economic Area) Regulations 2006 Immigration (European Economic Area) Regulations 2016 Appendix EU to the Immigration Rules

Question 9

Who is a ‘person with a derivative right to reside’?

Accepted Answer

A ‘person with a derivative right to reside’ is a person who has satisfied the Secretary of State by evidence provided that they are (and for the relevant period have been), or (as the case may be) for the relevant period they were either:

(a) resident for a continuous qualifying period in the UK which began before the specified date and throughout which all the following criteria are met:
they are not an exempt person
they are the primary carer of an EEA citizen
the EEA citizen is under the age of 18 years and resides in the UK as a self- sufficient person
the EEA citizen would in practice be unable to remain in the UK if the person (or both primary carers, where the role of primary carer is shared with another person in accordance with the definition of ‘primary carer’ in Annex 1 to Appendix EU) in fact left the UK for an indefinite period
they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect
(b) resident for a continuous qualifying period in the UK which began before the specified date and throughout which all the following criteria are met:
they are not an exempt person
they are in education in the UK
any of the person’s parents (“PP”) is an EEA citizen who resides or has resided in the UK
both the person and PP reside or have resided in the UK at the same time and during such a period of residence PP has been a worker or self- employed person in the UK
they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect
(c) resident for a continuous qualifying period in the UK which began before the specified date and throughout which all the following criteria are met:
they are not an exempt person
they are the primary carer of a person who meets the requirements of sub- paragraph (b) above (“PPP”)
PPP would in practice be unable to continue to be educated in the UK if the person (or both primary carers, where the role of primary carer is shared with another person in accordance with the definition of ‘primary carer’ in Annex 1 to Appendix EU) in fact left the UK for an indefinite period
they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect
(d) resident for a continuous qualifying period in the UK which began before the specified date and throughout which all the following criteria are met:
they are not an exempt person
they are under the age of 18 years (unless they were previously granted limited leave to enter or remain under rule EU3 of Appendix EU as a ‘person with a derivative right to reside’ and were under 18 at the date of application for that leave); and
their primary carer meets the requirements of sub-paragraph (a) or (c) above
the primary carer would in practice be prevented from residing in the UK if the person in fact left the UK for an indefinite period
they do not have leave to enter or remain in the UK, unless this was granted under Appendix EU, is in effect by virtue of section 3C of the Immigration Act 1971 or is leave to enter granted by virtue of having arrived in the UK with an entry clearance in the form of an EU Settlement Scheme family permit granted under Appendix EU (Family Permit) on the basis they met sub- paragraph (a)(ii) of the definition of ‘specified EEA family permit case’ in Annex 1 to that Appendix
they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect

In addition:

relevant period means here the continuous qualifying period in which the person relies on meeting this definition
unless the applicant relies on being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case, the relevant period must have been continuing at 11pm GMT on 31 December 2020
‘EEA citizen’ means in accordance with sub-paragraph (a)(i) of that definition in Annex 1 to Appendix EU and, where they are also a British citizen, the EEA citizen falls within sub-paragraphs (c) and (d) of the definition there of ‘relevant naturalised British citizen’
‘self-sufficient person’ means a person with sufficient resources not to become a burden on the social assistance system of the UK, regardless of whether they hold comprehensive sickness insurance cover in the UK
‘education in the UK’ excludes nursery education but does not exclude education received before the compulsory school age where that education is equivalent to the education received at or after the compulsory school age

This definition covers so-called ‘Chen’ primary carers and their dependants under the age of 18 and ‘Ibrahim and Teixeira’ children, primary carers and those carers’ dependants under the age of 18. It excludes ‘Zambrano carers’ and their dependants under the age of 18, for whom separate provision is made in Appendix EU as a ‘person with a Zambrano right to reside’.

There are therefore 3 key elements which must be met where an applicant to the EU Settlement Scheme relies on being or having been a ‘person with a derivative right to reside’:

the applicant must meet the requirements of the definition throughout the continuous qualifying period in the UK in which they rely on being or having been a ‘person with a derivative right to reside’
that continuous qualifying period in the UK as a ‘person with a derivative right to reside’ must have begun before the specified date (11pm GMT on 31 December 2020 or, where the applicant is a relevant EEA family permit case, 1159pm GMT on the date they arrived in the UK)
the applicant must also meet one of the following, either:

their continuous qualifying period in the UK as a ‘person with a derivative right to reside’ must have been continuing at 11pm GMT on 31 December 2020 (unless they are a relevant EEA family permit case) and must be continuing at the date of application to the scheme
their continuous qualifying period in the UK as a ‘person with a derivative right to reside’ must have been continuing at 11pm GMT on 31 December 2020 (unless they are a relevant EEA family permit case) and ended when the applicant completed a 5-year continuous qualifying period in the UK as such a person (and by the date of their application there has been no supervening event)
at the date of their application to the scheme, the applicant must be a ‘person who had a derivative or Zambrano right to reside’, meaning that, before the specified date, they were a ‘person with a derivative right to reside’ immediately before they met (whether before or after the specified date) another qualifying category (such as the family member of a relevant EEA citizen) and have since remained in that or another qualifying category through to the date of their application to the scheme. In such cases, they can aggregate their continuous residence across these categories where eligibility for indefinite leave to enter or remain under Appendix EU is concerned

Chen primary carer cases

In the case of Chen, the CJEU found that the primary carer of a self-sufficient EEA citizen child is entitled to a right to reside under EU law, if refusing such a right prevents the child from continuing to reside in the UK. Appendix EU does not require the EEA citizen child to hold, or have held, comprehensive sickness insurance. The conditions for this derivative right to reside are set out in sub-paragraph (a) of the definition of a ‘person with a derivative right to reside’ in Annex 1 to Appendix EU.

Under sub-paragraph (a), the applicant will be a ‘person with a derivative right to reside’ where they are and for the relevant period have been (or, as the case may be, for the relevant period in which they rely on having been a ‘person with a derivative right to reside’ they were) resident for a continuous qualifying period in the UK which began before the specified date and throughout which all the following criteria are met:

the applicant must not be an exempt person
the applicant must be the primary carer of a child, by both:
being their direct relative or legal guardian
having primary responsibility for their care or sharing equally the responsibility for their care with one other person, unless that other person had acquired a derivative right to reside in the UK as a result of regulation 16 of the EEA Regulations, or relied on meeting the definition of ‘primary carer’ in Annex 1 to Appendix EU in being granted the indefinite leave to enter or remain or limited leave to enter or remain they hold under that Appendix, before the person assumed equal care responsibility
the child:
must be an EEA citizen under the age of 18, unless they were previously granted limited leave to enter or remain under rule EU3 of Appendix EU as a ‘person with a derivative right to reside’ and were under the age of 18 at the date of application for that leave
must be resident in the UK
must hold sufficient resources to prevent them becoming a burden on the UK’s social assistance system during the period of residence, regardless of whether they meet (or, as the case may be, met) the requirement in regulation 4(1)(c)(ii) of the EEA Regulations for comprehensive sickness insurance cover in the UK
would in practice be unable to remain in the UK if the primary carer (or both primary carers, where the role of primary carer is shared with another person) in fact left the UK for an indefinite period
the applicant is not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect

Question 10

Ibrahim and Teixeira children and primary carer cases

Accepted Answer

In the cases of Ibrahim and Teixeira, the CJEU ruled that the following persons have a right to reside under EU law:

the child of a former EEA citizen worker (or, in line with the Withdrawal Agreement) self-employed person where the child is in education in the UK
their primary carer where requiring them to leave the UK for an indefinite period would prevent the child from continuing their education in the UK

The conditions for the child are set out in sub-paragraph (b) of the definition of a ‘person with derivative right to reside’ in Annex 1 to Appendix EU.

Under sub-paragraph (b), the applicant will be ‘a person with a derivative right to reside’ where they are and for the relevant period have been (or, as the case may be, for the relevant period in which they rely on having been a ‘person with a derivative right to reside’ they were) resident for a continuous qualifying period in the UK which began before the specified date and throughout which all the following criteria are met:

the applicant must not be an exempt person
the applicant is in education in the UK
the applicant is the child of a former EEA citizen worker or self-employed person who resides or has resided in the UK
the applicant lived in the UK while their EEA citizen parent worked or was self- employed in the UK
the applicant is not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect

The conditions for the child’s primary carer are set out in sub-paragraph (c) of the definition of ‘person with derivative right to reside’ in Annex 1 to Appendix EU.

Under sub-paragraph (c), the applicant will be a ‘person with a derivative right to reside’ where they are and for the relevant period have been (or, as the case may be, for the relevant period in which they rely on having been a ‘person with a derivative right to reside’ they were) resident for a continuous qualifying period in the UK which began before the specified date and throughout which all the following criteria are met:

the applicant must not be an exempt person
the applicant is the primary carer of a child who meets the conditions of sub- paragraph (b) above, by both:
being their direct relative or legal guardian
having primary responsibility for their care or sharing equally the responsibility for their care with one other person, unless that other person had acquired a derivative right to reside in the UK as a result of regulation 16 of the EEA Regulations or relied on meeting the definition of ‘primary carer’ in Annex 1 to Appendix EU in being granted the indefinite leave to enter or remain or limited leave to enter or remain they hold under that Appendix, before the person assumed equal care responsibility
the child would in practice be unable to continue to be educated in the UK if the primary carer in fact left the UK for an indefinite period
the applicant is not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect

Question 11

Dependant of the primary carer cases

Accepted Answer

Sub-paragraph (d) of the definition of a ‘person with a derivative right to reside’ in Annex 1 to Appendix EU sets out the requirements for a dependant under the age of 18 of a primary carer who meets the definition of a ‘person with a derivative right to reside’.

Under sub-paragraph (d), the applicant will be ‘a person with a derivative right to reside’ where they are and for the relevant period have been (or, as the case may be, for the relevant period in which they rely on having been a ‘person with a derivative right to reside’ they were) resident for a continuous qualifying period in the UK which began before the specified date and throughout which all the following criteria are met:

the applicant must not be an exempt person
the applicant is under the age of 18, unless they were previously granted limited leave to enter or remain under rule EU3 of Appendix EU as ‘a person with a derivative right to reside’ and were under the age of 18 at the date of application for that leave
the applicant does not have leave to enter or remain in the UK, unless this was granted under Appendix EU, is in effect by virtue of section 3C of the Immigration Act 1971 or is leave to enter granted by virtue of having arrived in the UK with an entry clearance in the form of an EU Settlement Scheme family permit granted under Appendix EU (Family Permit) on the basis they met sub- paragraph (a)(ii) of the definition of ‘specified EEA family permit case’ in Annex 1 to that Appendix
their primary carer meets the requirements of sub-paragraph (a) or (c) of the definition of ‘person with a derivative right to reside’ in Annex 1 to Appendix EU
their primary carer would in practice be prevented from residing in the UK if the applicant in fact left the UK for an indefinite period
the applicant is not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect

Question 12

Resident for a continuous qualifying period in the UK which began before the specified date and throughout which the relevant criteria are met

Accepted Answer

The applicant’s continuous qualifying period in the UK as a ‘person with a derivative right to reside’ must have begun before the specified date (11pm GMT on 31 December 2020 or, where the applicant is a ‘relevant EEA family permit case’, 1159pm GMT on the date they arrived in the UK).

The applicant must meet the requirements of the definition of a ‘person with a derivative right to reside’ throughout the continuous qualifying period in the UK in which they rely on being or having been such a person.

Question 13

Relevant period

Accepted Answer

Relevant period’ means the continuous qualifying period in which the applicant relies on meeting the definition of ‘person with a derivative right to reside’. For more information on continuous qualifying period, see EU Settlement Scheme EU, other EEA, Swiss citizens and family members.

The relevant period must have been continuing at 11pm GMT on 31 December 2020, unless the applicant relies on being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case.

As stated above, for convenience this guidance generally refers to the requirements in the present tense. However, it is important you apply the guidance to the relevant period relied upon.

Question 14

Who is a ‘person who had a derivative or Zambrano right to reside’?

Accepted Answer

Appendix EU allows an applicant to rely on past continuous residence in the UK as a ‘person with a derivative right to reside’ where, before the specified date, they were a person with a derivative right to reside immediately before they switched (whether before or after the specified date) into another qualifying category under the scheme.

Such a ‘person who had a derivative or Zambrano right to reside’ is defined in Annex 1 to Appendix EU (including as a qualifying category under condition 3 of rule EU11). In summary, they are a person who both:

before the specified date was a person with a derivative right to reside immediately before they became (whether before or after the specified date) a relevant EEA citizen, a family member of a relevant EEA citizen, a person with a Zambrano right to reside or a family member of a qualifying British citizen
has remained, or (as the case may be) remained, in any (or any combination) of those categories (including where they subsequently became a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen or with a qualifying British citizen)

Where an applicant relies on meeting this definition, the continuous qualifying period in which they rely on doing so must have been continuing at 11pm GMT on 31 December 2020. However, it does not matter whether at that point they were a ‘person with a derivative right to reside’ or were in one of the other categories referred to above.

Where such an applicant relies on having been a ‘person with a derivative right to reside’ as part of their continuous qualifying period, you must use this guidance to assess whether they satisfied the requirements throughout that relevant period.

Question 15

Making an application: deadline

Accepted Answer

An application under Appendix EU must be made by the required date: see the section on ‘Making an application: deadline’ in the guidance on EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members, including the scope for an application to be made after the relevant deadline where there are reasonable grounds for the person’s delay in making their application.

EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members EU Settlement Scheme: family member of a qualifying British citizen

Chen and others (Free movement of persons) [2004] EUECJ C-200/02 Ibrahim C-310/08

Teixeira C-480/08

Immigration (European Economic Area) Regulations 2006

Immigration (European Economic Area) Regulations 2016 Appendix EU to the Immigration Rules

Question 16

Section 2: All applications – initial eligibility requirements

Accepted Answer

You must first consider whether the applicant meets the initial eligibility requirements.

To be considered eligible under Appendix EU as a ‘person with a derivative right to reside’, the applicant for the relevant period:

must not be an exempt person
must not be subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect

Question 17

Exempt person

Accepted Answer

To be considered eligible as a ‘person with a derivative right to reside’, the applicant must not for the relevant period be an ‘exempt person’.

An ‘exempt person’ (as defined in Annex 1 to Appendix EU) is a person who:

had a right to reside in the UK under the EEA Regulations, other than under regulation 16, or example, as a person who exercised free movement rights as an EEA citizen or their family member: see Immigration (European Economic Area) Regulations 2016 - in such a case, they will be an ‘exempt person’ and so will not be a ‘person with a derivative right to reside’, but you must then go on to consider whether they are eligible on other grounds for leave under Appendix EU
has the right of abode in the UK under section 2 of the Immigration Act 1971 - for example, the person is a British citizen: see Right of abode - in such a case, you must treat the application as void, as a person with the right of abode cannot be granted leave under the scheme
is exempt from immigration control in accordance with section 8(2), (3) or (4) of the Immigration Act 1971: see persons exempt from control - in such a case, they will be an ‘exempt person’ and so cannot be considered a ‘person with a derivative right to reside’, but you must then go on to consider whether they are eligible on other grounds for leave under Appendix EU
has indefinite leave to enter or remain in the UK: you can ascertain this by checking Home Office records - if they do, they may be eligible for indefinite leave to enter or remain under the scheme under condition 2 of rule EU11 of Appendix EU

If the applicant is an ‘exempt person’ on the basis that the first, third or fourth of the bullet points above applies, then you must, based on the information available to you, consider their eligibility for leave on another basis under rule EU11 (and, where relevant, EU12) and EU14 of Appendix EU, see: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

If they are such an ‘exempt person’ and they do not meet any other eligibility requirements for leave under the scheme, then you must refuse the application under rule EU6, without going on to consider the other eligibility requirements in this guidance.

Question 18

Subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect

Accepted Answer

A derivative right to reside is not available to a person subject to one of the following decisions made under the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect:

under regulation 23(6)(b), to remove on grounds of public policy, public security or public health in accordance with regulation 27
under regulation 24(1), to refuse to issue, to revoke or to refuse to renew residence documentation on grounds of public policy, public security or public health, or on grounds of misuse of rights in accordance with regulation 26(3)
under regulation 25(1), to cancel a right of residence
under regulation 26(3), on grounds of misuse of rights
under regulation 31(1), to revoke admission

An applicant cannot therefore meet the definition of a ‘person with a derivative right to reside’ under Annex 1 to Appendix EU if they are subject to any of the above decisions during the relevant period, unless that decision has been set aside or otherwise no longer has effect.

If the applicant does not meet this requirement, then you must, based on the information available to you, consider their eligibility for leave under the other eligibility requirements in rule EU11 (and, where relevant, EU12) and EU14 of Appendix EU, see: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

If they do not meet any other eligibility requirements for leave under the scheme, then you must refuse the application under rule EU6, without going on to consider the other eligibility requirements in this guidance.

EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members EU Settlement Scheme: family member of a qualifying British citizen

Immigration (European Economic Area) Regulations 2006 Immigration (European Economic Area) Regulations 2016 Appendix EU to the Immigration Rules

Question 19

Section 3: Eligibility – Chen primary carer

Accepted Answer

Where the applicant relies on being a Chen primary carer and meets the initial eligibility requirements in section 2 of this guidance, you must then consider the following 4 additional stages:

stage 1: primary carer: assessing whether the applicant is the primary carer of the EEA citizen child
stage 2: EEA citizen child under 18: assessing whether the child is an EEA citizen and under the age of 18, unless they were previously granted limited leave to enter or remain under rule EU3 of Appendix EU as a ‘person with a derivative right to reside’ and were under the age of 18 at the date of application for that leave
stage 3: EEA citizen child resides in the UK as a self-sufficient person: assessing whether the EEA citizen child resides in the UK as a self-sufficient person
stage 4: EEA citizen child unable to remain in the UK: assessing whether, in practice, the EEA citizen child would be unable to remain in the UK if the applicant was in fact required to leave the UK for an indefinite period

These criteria must be met throughout the continuous qualifying period in the UK, which began before the specified date, in which the applicant relies on having been a ‘person with a derivative right to reside’ for them to be eligible for leave under the scheme as such a person.

In addition, that relevant period must have been continuing at 11pm GMT on 31 December 2020, unless the applicant relies on being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case.

Appendix EU to the Immigration Rules

Question 20

Stage 1: Primary carer

Accepted Answer

The first additional stage is to assess whether the applicant is the primary carer of the child.

Question 21

Primary carer

Accepted Answer

Primary responsibility for a child by a parent

Where an individual is applying as a ‘person with a derivative right to reside’ as the primary carer of a relevant child, in most cases it is likely that they will also be the parent of that child. Where this is claimed to be so, you must be satisfied, for example by the provision by the applicant of the child’s birth certificate, that they are the parent of the child.

A parent who resides with the child on a permanent basis and does not share the caring responsibility for that child with another person can be accepted as having primary carer responsibility for that child.

However, you must make further enquiries where there is either:

evidence the child resides permanently with another parent or carer
evidence there is another parent in the UK who shares responsibility for the child
no evidence as to where the child resides

It may be necessary to contact the other parent or carer before you decide who the child’s primary carer is.

Other direct relative or legal guardian with primary carer responsibility

Where the person claiming to be the primary carer of the child is not their parent, you must be satisfied that they are another direct relative of the child, or their legal guardian, with primary carer responsibility for the child, for example by the provision of a valid guardianship order or another valid court order which establishes their primary carer responsibility for the child.

An example of an alternative court order would be one transferring parental responsibility. Such court orders must be considered on a case by case basis to determine whether they establish that the person is the child’s primary carer.

Court orders

A court order establishing primary carer responsibility for the child is most likely to be made in the context of family proceedings. The most common court orders seen during family proceedings are:

child arrangements orders or (before that) residence orders – used to decide where, and with which parent, a child will live
child arrangements orders or (before that) contact orders – used to decide when a party to the court hearing can have contact with the child, for example, at weekends or school holidays
specific issue order – used to look at specific questions about the child’s upbringing, for example, what school they go to or if they should have religious education
prohibited steps order – prevents a party from removing a child from a specific location, most commonly the UK but can be narrowed to city limits

If a court order establishes shared residence or that there is another parent in the UK who has contact with the child, further enquiries must be made, unless there is alternative evidence as to why the other parent is unable to care for the child.

Primary responsibility for adults

Where the applicant is claiming to be ‘a person with a derivative right to reside’ on the basis they are the primary carer of a person over the age of 18 years in education in the UK (Ibrahim and Teixeira cases), they may be the spouse or civil partner of that adult or another direct relative.

Primary responsibility for the relevant person in education in the UK will be established in cases involving adults where the applicant can show they are responsible for the majority of that adult’s care.

The level of evidence required to demonstrate primary responsibility for the relevant person’s care and dependency will be higher in cases involving adults than in those involving children. In such cases, only evidence that shows the relevant person’s dependency on the applicant is due to a severe physical or mental disability is likely to satisfy you that they require the care of the applicant.

For more information on physical or mental impairment see: Physical or mental impairment.

Two people can be considered to share equally primary carer responsibility, in line with the definition of ‘primary carer’ in Annex 1 to Appendix EU, where they both share equally the responsibility for the care and welfare of the relevant person, in the long-term and on a day-to-day basis.

In the case of a child, this includes things like deciding where the child lives, choosing what school they attend, deciding how and where the child spends time outside school, and authorising medical treatment or a school trip. In the case of an adult, this includes things like deciding where the person lives, and arranging and being involved in their medical care.

Two people who spend different amounts of time with a child (for example where the child lives with one parent during the week and the other at weekends) may still have equal primary carer responsibility for the child. Where a child lives with two parents, the parents will usually be considered to share equal primary carer responsibility for the child, even where one parent works and the other does not.

Two people who spend different amounts of time with the relevant person who is an adult (for example where the relevant person lives with one of them, but the other is also heavily involved in the relevant person’s medical care) may also still have equal primary carer responsibility for the person.

Circumstances must be considered on a case by case basis.

Evidence of shared primary carer responsibility

A person will generally be considered to share equal primary carer responsibility where either:

both individuals are living together in the same household with the child
the individuals share responsibility for the child – evidence of this may include (but is not limited to):
a custody agreement or court order
statement or statements from the individuals to this effect

Equal primary carer responsibility does not mean there has to be evidence of equal sharing of responsibilities, as this is not always practical. For example, a child may reside with their mother during the week and their father at weekends or they may reside with the mother full-time, but the father has regular contact with the child.

Whilst the father may not provide most of the care for the child, in both examples, the father is actively involved in the child’s life. In such cases, unless there is evidence to indicate the father is in practice unable to care for the child, it can be accepted that both parents share equal primary carer responsibility.

You must consider each case on its individual merits and consult your senior caseworker if you have any doubt whether primary carer responsibility for a child is equally shared.

Financial support

As set out in the definition of ‘primary carer’ in Annex 1 to Appendix EU, financial support alone will not bring a person within the definition of primary carer. For example, where a person only provides the child with financial support and has no day-to-day caring responsibilities, this is not sufficient to demonstrate that they are the child’s primary carer.

Two primary carers

If there are two primary carers of the same child, they can, subject to the rest of this section, both be considered a ‘person with a derivative right to reside’ for the purposes of Appendix EU, even if they apply under the scheme at different times.

In line with the definition of ‘primary carer’ in Annex 1 to Appendix EU, a person will not be eligible where, before they assumed equal care responsibility, the person with whom care responsibility is shared had already acquired a derivative right to reside in the UK as a result of regulation 16 of the EEA Regulations or relied on meeting the

definition of ‘primary carer’ in Annex 1 to Appendix EU in being granted the indefinite leave to enter or remain or limited leave to enter or remain they hold under that Appendix.

In addition, as held by the Court of Appeal in Velaj v SSHD [2022] EWCA Civ 767, where you are assessing an application based on there being two primary carers, you must undertake a fact-based enquiry, looking at whether, in practice, the child would be unable to remain in the UK if both primary carers were in fact required to leave the UK for an indefinite period.

Both primary carers can also rely upon any period in which they are the child’s sole primary carer.

Question 22

Assessing ‘direct relative’ or ‘legal guardian’

Accepted Answer

Where the applicant has been issued with a residence card or a family permit under the EEA Regulations on the basis that they are the direct relative of the child, you can accept that this has already been confirmed.

Where the applicant has not been issued with such a document or has been issued with one based on legal guardianship, you must be satisfied from information or evidence provided by the applicant that either:

they are the direct relative of the relevant child and were so before the specified date
throughout the continuous qualifying period relied upon which began before the specified date, they were the child’s legal guardian

See direct relative or legal guardian for more guidance on determining who is a direct relative or legal guardian.

Question 23

Conclusion on stage 1

Accepted Answer

Where you are satisfied that, throughout a continuous qualifying period which began before the specified date in which they rely on having been ‘a person with a derivative right to reside’, the applicant met the additional requirements of that definition set out in section 3, 4, 5 or 6 of this guidance, you must move on to the next stage.

Where you are not satisfied of this, you must not move on to the next stage, but must instead consider the applicant’s eligibility for leave on another basis under rule EU11 (and, where relevant, EU12) and EU14 of Appendix EU: see EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

If the applicant does not meet any of these other requirements, you must refuse the application under rule EU6 of Appendix EU.

EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members

Appendix EU to the Immigration Rules

Question 24

Stage 2: EEA citizen child under 18

Accepted Answer

The second additional stage is to consider whether the relevant child is an European Economic Area (EEA) citizen and under the age of 18, unless they were previously granted limited leave to enter or remain under rule EU3 of Appendix EU as a ‘person with a derivative right to reside’ and were under the age of 18 at the date of application for that leave.

Question 25

EEA citizenship

Accepted Answer

For the purposes of this assessment, an ‘EEA citizen’ is a person who is either:

a national of: Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden or Switzerland, and not also a British citizen
a ‘relevant naturalised British citizen’ (as defined in Annex 1 to Appendix EU), that is a ‘Lounes dual national’

A ‘McCarthy dual national’ and a ‘relevant person of Northern Ireland’ are not considered an ‘EEA citizen’ for the purpose of this assessment because a child of such a person did not have a right to reside in the UK as an Ibrahim and Teixeira child.

To satisfy you of the citizenship of the EEA citizen, the applicant can, for example, provide the valid passport or the valid national identity card of that person as an EEA citizen, or the EU Settlement Scheme application number of that person where they have applied for or been granted leave as an EEA citizen under the scheme.

Question 26

Age

Accepted Answer

To satisfy you that they are under the age of 18, the applicant can, for example, provide their valid passport, their valid national identity card, an in-date residence document issued under the European Economic Area (EEA) Regulations or their birth certificate.

Where the applicant provides an in-date residence document issued under the EEA Regulations, it does not matter that the person concerned no longer has the right to enter or reside under the EEA Regulations on which basis the document was issued, by virtue of the revocation of those Regulations.

Question 27

Conclusion on stage 2

Accepted Answer

Where you are satisfied that on ceasing to be a ‘person with a derivative right to reside’, before or after the specified date, the applicant immediately satisfied the requirements of another qualifying category and remained in such a category, you must move on to the overall conclusion below.

Where you are not satisfied of this, you must not move on to that stage, but must instead consider the applicant’s eligibility for leave on another basis under rule EU11 (and, where relevant, EU12) and EU14 of Appendix EU: see EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

If the applicant does not meet any of these other requirements, you must refuse the application under rule EU6 of Appendix EU.

Question 28

Stage 3: EEA citizen child resides in the UK as a self-sufficient person

Accepted Answer

The third additional stage is to assess whether the European Economic Area (EEA) citizen child resides in the UK as a self-sufficient person, meaning that they have sufficient resources not to become a burden on the social assistance system of the UK.

Question 29

Resides in the UK

Accepted Answer

You must be satisfied that the EEA citizen child resides in the UK and you must work flexibly with the applicant to help them evidence this by the best means available to them. For further information see the section on ‘Evidence of residence’ in EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

Question 30

Income from the primary carer

Accepted Answer

The applicant can show that the EEA citizen child is self-sufficient by relying on the income of the applicant.

In addition, in light of the Court of Justice of the European Union (CJEU) judgment in Bajratari, the primary carer may rely on funds accrued from ‘unlawful employment’, such as employment without permission, provided that it did not involve engaging in a criminal activity.

Question 31

Income from other sources

Accepted Answer

If the applicant is not working in the UK, or does not earn enough income to demonstrate that the EEA citizen child and they are self-sufficient, you may accept other evidence which may include:

bank statements showing income from other sources, for example rental income
savings accounts showing funds which are accessible to the child

This is not an exhaustive list and there may be other evidence of funds which can be considered acceptable.

Question 32

Comprehensive sickness insurance

Accepted Answer

An individual applying as a ‘person with a derivative right to reside’ based on Chen does not need to show that the EEA citizen child holds comprehensive sickness insurance. You therefore must not seek evidence of this.

Question 33

An unreasonable burden on the UK’s social assistance system?

Accepted Answer

You must consider whether the EEA citizen child is a beneficiary of the UK’s social assistance system, directly or via the primary carer, and whether, in light of the CJEU judgment in Bajratari, that makes the child an unreasonable burden on that system during the period of residence.

Where funds of the primary carer are from the UK’s social assistance system, irrespective of the fact that the child is not themselves the claimant, the child can, in principle, be considered an unreasonable burden on that system if the amount of funds claimed is of sufficient magnitude that it is unreasonable for the UK to shoulder.

For these purposes, Asylum Support paid by the Home Office for the benefit of the child is to be considered part of the UK’s social assistance system.

To assess whether the EEA citizen child has sufficient resources to cover their essential needs – accommodation, food, clothing, school supplies, etc – for them not to become an unreasonable burden on the UK’s social assistance system during the period of residence, you must consider:

Does the child have sufficient resources in their own right without having recourse to social assistance?
If not, and together with (1), does the child have sufficient resources provided by the primary carer, without either the child or the primary carer having recourse to social assistance?
If not, has the child had recourse to social assistance directly or via the primary carer?
In light of (2) and (3), will the child (or have they) become an unreasonable burden on the UK’s social assistance system during the period of residence?

You must make an individualised assessment in each case, looking at (i) the amount of social assistance received by the child and / or the primary carer and over what period; (ii) whether the child is a primary beneficiary of those funds; and (iii) whether it would be reasonable and proportionate to refuse the application on that basis in light of all the circumstances.

In line with Bajratari, the decision must be necessary and proportionate in order to protect the public finances of the host state.

Question 34

Conclusion on stage 3

Accepted Answer

Where you are satisfied that the relevant person both:

is and for the relevant period has been (or, as the case may be, for the relevant period they were) the applicant’s primary carer
meets and for the relevant period has met (or, as the case may be, for the relevant period they met) the requirements of sub-paragraph (a) or (c) of the definition of a ‘person with a derivative right to reside’ in Annex 1 to Appendix EU

you must move on to the next stage.

Where you are not satisfied of this, you must not move on to the next stage, but must instead consider the applicant’s eligibility for leave on another basis under rule EU11 (and, where relevant, EU12) and EU14 of Appendix EU: see EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

If the applicant does not meet any of these other requirements, you must refuse the application under rule EU6 of Appendix EU.

EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members

Appendix EU to the Immigration Rules

Immigration (European Economic Area) Regulations 2016

Question 35

Stage 4: EEA citizen child unable to remain in the UK

Accepted Answer

The fourth additional stage is to assess whether, in practice, the relevant European Economic Area (EEA) citizen child would be unable to remain in the UK if the applicant were in fact required to leave the UK for an indefinite period.

In line with the Court of Appeal judgment in Velaj v SSHD [2022] EWCA Civ 767, this assessment requires a fact-based enquiry looking at whether, in practice, the child would be unable to remain in the UK if the applicant was in fact required to leave the UK for an indefinite period.

Question 36

Could the relevant EEA citizen child remain in the UK?

Accepted Answer

For detailed guidance on how to assess this, see the ‘Velaj assessment’ section.

Question 37

Alternative care arrangements

Accepted Answer

Alternative care arrangements – children

Where an applicant has demonstrated that they are a primary carer of the relevant child and that they would in fact be required to leave the UK for an indefinite period if their application was refused, you must consider whether there is another person living in the UK, for example a direct relative or legal guardian, who can care for the child.

Where there is another such person living in the UK, you must consider whether, if the applicant is required to leave the UK for an indefinite period, it is appropriate, including, in particular, in light of the child’s best interests, for that person to care for the child instead of the applicant.

Other parent

In all cases in which only one parent is applying to the scheme as a ‘person with a derivative right to reside’, you must establish the whereabouts and immigration status of the child’s other parent (or, if the applicant is another direct relative or legal guardian, the whereabouts and immigration status of both parents for the relevant period). If this information is not held, you must ask the applicant to provide it.

Unless there is information that there is another direct relative or legal guardian in the UK who is caring for the child, or is able to do so, you can accept that there are no alternative care arrangements for the child where there is evidence that the other parent either:

is not a British citizen and does not have another right to reside in the UK (unless under Appendix EU as a ‘person with a derivative right to reside’)
is residing outside the UK

Where there is evidence to suggest that the applicant did not have permission to take the child out of another jurisdiction (for example, where a court in another country has ordered that the child live with the other parent or that neither parent may take the child abroad without the consent of each other or the court), you must contact the British Embassy or High Commission in that other country before deciding the application. The British Embassy or High Commission would then need to contact the relevant authorities to determine whether the child needs to return to the other country.

Deceased parent

Unless there is information that there is another direct relative or legal guardian in the UK who is caring for the child, or is able to do so, you can accept that there are no alternative care arrangements for the child if the other parent has died. The applicant can satisfy you of this by, for example, providing the death certificate of that parent.

Direct relatives and legal guardians

You can accept that there is another direct relative in the UK who could care for the child if that direct relative either:

is currently caring for the child
has stated that they are able to care for the child and has had contact with the child within 12 months

To be satisfied that the child has a legal guardian who could care for them in the UK if the primary carer in fact left the UK for an indefinite period, you need for example to see evidence that a court has granted that person legal guardianship of the child.

Unsuitable care arrangements

There may be instances where there is another parent or direct relative who you would expect could care for the child but they are considered unsuitable. For example, where there are child protection issues which would prevent the child being placed with them. In such cases it would not be appropriate to expect the child to live with that person.

A lack of financial resources, a lack of willingness to assume caring responsibilities, or an assertion that a person would need to alter their working pattern would not, by itself, be a sufficient basis for a person to claim they are unable to care for the child. You must consult a senior caseworker in any such case before making your decision.

Alternative care arrangements – adults

Where an Ibrahim and Teixeira child, or a dependant of a primary carer, has reached the age of 18 years, you can generally assume they are capable of meeting their own needs. In some cases, the person may need the presence and care of the primary carer to pursue and complete their education. This is likely to occur where the person has a physical or mental impairment that means they are in practice unable to care for themselves.

For further information on assessing a person’s physical or mental impairments and how that impacts upon their ability to care for themselves, see Physical or mental impairment.

Alternative care

Where a person has demonstrated they are a primary carer, you must consider whether there are alternative care arrangements for the person in education.

Alternative care may include, but is not limited to:

direct relative or legal guardian
local authority care provider
private care provider

You must consider each case on its individual merits and refer it to a deputy chief caseworker before you make your decision.

Conclusion

Unless there is information that there is and for the relevant period has been (or, as the case may be, for the relevant period there was) another parent, direct relative or legal guardian (or, in the case of an adult, a local authority or private care provider) in the UK (or, where relevant, outside the UK) caring for the relevant person, or such a person or body able to do so, you can accept that there are (or were) no alternative care arrangements for them.

This means that, in practice, the relevant person would not be able (or, as the case may be, for the relevant period would not have been able) to continue residing (or being educated) in the UK if the applicant in fact left (or had left) the UK for an indefinite period. Or, in the case of a dependant of a primary carer, the primary carer would, in practice, be prevented from residing in the UK if the applicant in fact left (or had left) the UK for an indefinite period.

If you reach this conclusion, you can accept that, in respect of this element, the applicant meets the definition of a ‘person with a derivative right to reside’ under Appendix EU.

Question 38

Conclusion on stage 4

Accepted Answer

Where you are satisfied that, in practice, the primary carer would be (or, as the case may be, for the relevant period would have been) prevented from residing in the UK if the applicant in fact left (or had left) the UK for an indefinite period, you must move on to the overall conclusion below.

Where you are not satisfied of this, you must not move on to that stage, but must instead consider the applicant’s eligibility for leave on another basis under rule EU11 (and, where relevant, EU12) and EU14 of Appendix EU: see EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

If the applicant does not meet any of these other requirements, you must refuse the application under rule EU6 of Appendix EU.

Question 39

Overall conclusion

Accepted Answer

Where you are satisfied that the application meets the requirements of the additional stages 1 and 2, you must next go on to section 8: All applications not yet concluded to establish whether the applicant is eligible for indefinite leave to enter or remain or limited leave to enter or remain under Appendix EU as a ‘person who had a derivative or Zambrano right to reside’.

EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members

Appendix EU to the Immigration Rules

Question 40

Section 4: Eligibility – Ibrahim and Teixeira child

Accepted Answer

Where the applicant relies on being an Ibrahim and Teixeira child (who may have turned 18) and meets the initial eligibility requirements in section 2 of this guidance, you must then consider the following 3 additional stages:

stage 1: child in education in the UK: assessing whether the applicant is in education in the UK
stage 2: child of an EEA citizen: assessing whether the applicant is the child of an EEA citizen who resides or resided in the UK
stage 3: child in the UK when the EEA citizen parent was a worker or self- employed person in the UK: assessing whether the applicant lived in the UK while the EEA citizen parent was a worker or self-employed person in the UK

These criteria must be met throughout the continuous qualifying period in the UK, which began before the specified date, in which the applicant relies on having been a ‘person with a derivative right to reside’ for them to be eligible for leave under the scheme as such a person.

In addition, that relevant period must have been continuing at 11pm GMT on 31 December 2020, unless the applicant relies on being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case.

Appendix EU to the Immigration Rules

Question 41

Stage 1: Child in education in the UK

Accepted Answer

The first additional stage is to assess whether the child (who may have turned 18) is in education in the UK.

Question 42

Education

Accepted Answer

Education excludes nursery education but includes education received before the compulsory school age where that education is equivalent to the education received from the compulsory school age. Attending a reception class is not considered nursery education and is therefore included.

To satisfy you that the child is in education in the UK, the applicant can, for example, provide a letter from the relevant education establishment or establishments that confirms the date that they started education at that establishment and, if relevant, the date they completed their education there.

Question 43

Stage 2: Child of an EEA citizen

Accepted Answer

The second additional stage is to assess whether the applicant is the child (who may have turned 18) of an European Economic Area (EEA) citizen.

Where the applicant has been issued with a residence card or family permit under the EEA Regulations on the basis they are the child of the same EEA citizen, you can accept that this has already been confirmed and move to the next stage.

Question 44

Adopted children and step-children

Accepted Answer

An adopted child (adopted in accordance with a ‘relevant adoption decision’ as defined in Annex 1 to Appendix EU) and a step-child of an EEA citizen are to be considered in the same way as if they were the biological child of the EEA citizen with regard to Ibrahim and Teixeira.

A ‘relevant adoption decision’ is defined in Annex 1 to Appendix EU as an adoption decision taken either:

by the competent administrative authority or court in the UK or the Islands
by the competent administrative authority or court in a country whose adoption orders are recognised by the UK or the Islands
in a particular case in which that decision in another country has been recognised in the UK or the Islands as an adoption

Question 45

Relationship between child and EEA citizen

Accepted Answer

To satisfy you of the relationship between the child and the EEA citizen, the applicant can, for example, provide their birth certificate, their birth certificate and the marriage certificate for their parent and the EEA citizen (where applying as a step- child) or evidence of the adoption (where applying as an adopted child).

You must be satisfied as to the relationship between the child and the EEA citizen upon whom the child is basing their application.

Question 46

Stage 3: Child in the UK when EEA citizen parent was a worker or self- employed person in the UK

Accepted Answer

The third additional stage is to assess whether the applicant lived in the UK while their European Economic Area (EEA) citizen parent was a worker or self-employed person in the UK.

It is not necessary for the parent to have been a worker or self-employed person in the UK while the applicant was in education in the UK.

Question 47

Worker

Accepted Answer

The EEA citizen parent will be considered a worker in the UK where there is evidence which satisfies you that they are a worker as defined in regulation 4(1) of the EEA Regulations.

There is no minimum period for how long the EEA citizen parent must have been a worker in the UK, as long as the applicant was in the UK at the same time. Work undertaken in line with the EU8 and EU2 worker schemes is acceptable. For more information see: Qualified persons guidance.

A worker does not include the following for these purposes:

a jobseeker
a person who is no longer working but who continues to be treated as a worker within the meaning of “qualified person” under regulation 6 of the EEA Regulations

Question 48

Self-employed person

Accepted Answer

The EEA citizen parent will be considered a self-employed person in the UK where there is evidence which satisfies you that they are a self-employed person as defined in regulation 4(1) of the EEA Regulations.

There is no minimum period for how long the EEA citizen parent must have been a self-employed person in the UK, as long as the applicant was in the UK at the same time. For more information see: Qualified persons guidance.

A self-employed person does not include for these purposes a person who is no longer in self-employment but who continues to be treated as a self-employed person within the meaning of “qualified person” under regulation 6 of the EEA Regulations.

Question 49

Child in the UK

Accepted Answer

You must be satisfied that the child was resident in the UK at the same time as their EEA citizen parent was a worker or self-employed person here, and you must work flexibly with the applicant to help them evidence this by the best means available to them. For further information see the section on ‘Evidence of residence’ in EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

Question 50

Section 5: Eligibility – Ibrahim and Teixeira primary carer

Accepted Answer

Where the applicant relies on being an Ibrahim and Teixeira primary carer and meets the initial eligibility requirements in section 2 of this guidance, you must then consider the following 3 additional stages:

stage 1: primary carer: assessing whether the applicant is the primary carer of the child
stage 2: Ibrahim and Teixeira child: assessing whether the relevant child (who may have turned 18) meets the requirements as an Ibrahim and Teixeira child
stage 3: child unable to continue to be educated in the UK: assessing whether, in practice, the child would be unable to continue to be educated in the UK if the applicant was in fact required to leave the UK for an indefinite period

These criteria must be met throughout the continuous qualifying period in the UK, which began before the specified date, in which the applicant relies on having been a ‘person with a derivative right to reside’ for them to be eligible for leave under the scheme as such a person.

In addition, that relevant period must have been continuing at 11pm GMT on 31 December 2020, unless the applicant relies on being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case.

EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members

Appendix EU to the Immigration Rules

Question 51

Stage 2: Ibrahim and Teixeira child

Accepted Answer

The second additional stage is to consider whether the relevant child meets the requirements as an Ibrahim and Teixeira child as set out in sub-paragraph (b) of the definition in Annex 1 to Appendix EU of a ‘person with derivative right to reside’. See Section 4: Eligibility – Ibrahim and Teixeira child.

The child, who may have turned 18, must meet those criteria throughout the continuous qualifying period in the UK in which the applicant relies on having been a ‘person with a derivative right to reside’.

Question 52

Stage 3: Child unable to continue to be educated in the UK

Accepted Answer

The third additional stage is to assess whether, in practice, the relevant child would be unable to continue to be educated in the UK if the applicant were in fact required to leave the UK for an indefinite period.

In line with the Court of Appeal judgment in Velaj v SSHD [2022] EWCA Civ 767, this assessment requires a fact-based enquiry looking at whether, in practice, the child would be unable to continue to be educated in the UK if the applicant was in fact required to leave the UK for an indefinite period.

Question 53

Could the relevant child continue to be educated in the UK?

Accepted Answer

For detailed guidance on how to assess this, see the ‘Velaj assessment’ section.

Question 54

Section 6: Eligibility – dependant of the primary carer

Accepted Answer

Where the applicant relies on being a dependant of the primary carer and meets the initial eligibility requirements in section 2 of this guidance, you must then consider the following 3 additional stages:

stage 1: applicant under the age of 18: assessing whether the applicant is under the age of 18, unless they were previously granted limited leave to enter or remain as ‘a person with a derivative right to reside’ and were under the age of 18 at the date of application for that leave
stage 2: applicant without leave to enter or remain: assessing whether the applicant already has leave to enter or remain in the UK, unless this was granted under Appendix EU, is in effect by virtue of section 3C of the Immigration Act 1971 or is leave to enter granted by virtue of having arrived in the UK with an entry clearance in the form of an EU Settlement Scheme family permit granted under Appendix EU (Family Permit) on the basis they met sub- paragraph (a)(ii) of the definition of ‘specified EEA family permit case’ in Annex 1 to that Appendix
stage 3: applicant’s primary carer a ‘person with a derivative right to reside’: assessing whether the relevant person is the applicant’s primary carer and whether that person meets the requirements of sub-paragraph (a) or (c) of the definition of a ‘person with a derivative right to reside’ in Annex 1 to Appendix EU
stage 4: primary carer prevented from residing in the UK: assessing whether, in practice, the applicant’s primary carer would be prevented from residing in the UK if the applicant in fact left the UK for an indefinite period

These criteria must be met throughout the continuous qualifying period in the UK, which began before the specified date, in which the applicant relies on having been a ‘person with a derivative right to reside’ for them to be eligible for leave under the scheme as such a person.

In addition, that relevant period must have been continuing at 11pm GMT on 31 December 2020, unless the applicant relies on being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case.

EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members

Appendix EU to the Immigration Rules

Question 55

Stage 1: Applicant under the age of 18

Accepted Answer

The first additional stage is to consider whether the applicant is under the age of 18, unless they were previously granted limited leave to enter or remain under rule EU3 of Appendix EU as ‘a person with a derivative right to reside’ and were under the age of 18 at the date of application for that leave.

Question 56

Stage 2: Applicant without leave to enter to remain

Accepted Answer

The second additional stage is to consider whether the applicant has leave to enter or remain in the UK, unless it is of a permitted type.

Question 57

Consideration

Accepted Answer

To assess whether, on ceasing to be a ‘person with a derivative right to reside’, before or after the specified date, the applicant immediately satisfied the requirements of another qualifying category and has since remained in or (as the case may be) remained, in any (or any combination) of those categories. To complete this assessment, you must refer to the relevant guidance:

a relevant EEA citizen: see EU Settlement Scheme EU, other EEA, Swiss citizens and family members
a family member of a relevant EEA citizen: see EU Settlement Scheme EU, other EEA, Swiss citizens and family members
a person with a Zambrano right to reside: see EU Settlement Scheme: person with a Zambrano right to reside
a family member of a qualifying British citizen: see EU Settlement Scheme family member of a qualifying British citizen
a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen or with a qualifying British citizen: see EU Settlement Scheme EU, other EEA, Swiss citizens and family members

In addition, the continuous qualifying period in which the applicant relies on meeting the definition of a ‘person who had a derivative or Zambrano right to reside’ must have been continuing at 11pm GMT on 31 December 2020. However, it does not matter whether at that point they were a ‘person with a derivative right to reside’ or were in one of the other categories referred to above.

Question 58

Stage 3: Applicant’s primary carer a ‘person with a derivative right to reside’

Accepted Answer

The third additional stage is to consider whether the relevant person is the applicant’s primary carer and whether that person meets the requirements of sub- paragraph (a) or (c) of the definition of a ‘person with a derivative right to reside’ in Annex 1 to Appendix EU.

Question 59

Primary carer of the applicant

Accepted Answer

A primary carer is defined in Annex 1 to Appendix EU as a direct relative or legal guardian of another person who either:

has primary responsibility for that person’s care
shares equally the responsibility for that person’s care with one other person, unless that other person had acquired a derivative right to reside in the UK as a result of regulation 16 of the EEA Regulations or relied on meeting the definition of ‘primary carer’ in Annex 1 to Appendix EU in being granted the indefinite leave to enter or remain or limited leave to enter or remain they hold under that Appendix, before the person assumed equal care responsibility

A person is not to be regarded as having responsibility for another person’s care on the sole basis of a financial contribution to that care.

Where the relevant person has been issued with a residence card or a family permit under the EEA Regulations on the basis that they were the primary carer of the applicant, you must assess whether they remain the primary carer of the applicant throughout the continuous qualifying period relied upon which began before the specified date.

For guidance on assessing whether a person is a primary carer, see primary carer.

Question 60

Chen or Ibrahim & Teixeira primary carer

Accepted Answer

To assess whether the relevant person meets the requirements of sub-paragraph (a) or (c) of the definition of a ‘person with a derivative right to reside’ in Annex 1 to Appendix EU, you must first consider whether they meet the initial eligibility requirements in section 2 of this guidance and, if they do, then consider whether the additional eligibility requirements in either section 3 (Chen primary carer) or section 5 (Ibrahim and Teixeira primary carer) of this guidance are met.

These criteria must be met throughout the continuous qualifying period in the UK, which began before the specified date, in which the applicant relies on having been a ‘person with a derivative right to reside’.

To satisfy you of this, the applicant can, for example, provide the EU Settlement Scheme application number of the relevant person where they have been granted

leave under the scheme. However, there is no requirement for the relevant person to apply first under the scheme and, where they have not been granted leave under the scheme, the applicant will need to satisfy you that the relevant person meets the requirements of sub-paragraph (a) or (c) of the definition of a ‘person with a derivative right to reside’ in Annex 1 to Appendix EU.

Question 61

Stage 4: Primary carer prevented from residing in the UK

Accepted Answer

The fourth additional stage is to consider whether, in practice, the primary carer would be prevented from residing in the UK if the applicant in fact left the UK for an indefinite period.

In line with the Court of Appeal judgment in Velaj v SSHD [2022] EWCA Civ 767, this assessment requires a fact-based enquiry looking at whether, in practice, the primary carer would be prevented from residing in the UK if the applicant were in fact required to leave the UK for an indefinite period.

It will generally be reasonable to consider that the applicant has a realistic prospect of being granted Appendix Private Life leave where the applicant is under the age of 18, has lived in the UK for at least 7 years and does not have a serious criminal history. Where this applies, it is likely that the applicant would not in fact leave the UK for an indefinite period. In such a case, if the applicant cannot satisfy you otherwise on the balance of probabilities, then the primary carer would not be prevented from residing in the UK. As a result, the applicant will not meet the requirements to be a ‘person with a derivative right to reside’.

Question 62

Could the primary carer remain in the UK?

Accepted Answer

For detailed guidance on how to assess this, see the ‘Velaj assessment’ section.

Question 63

Section 7: Person who had a derivative or Zambrano right to reside

Accepted Answer

Where the applicant relies on being a ‘person who had a derivative or Zambrano right to reside’ and meets the initial eligibility requirements in section 2 of this guidance in respect of the relevant period in which they rely on having been a ‘person with a derivative right to reside’, you must then consider the following 2 additional stages:

stage 1: applicant met the definition of a ‘person with a derivative right to reside’: assessing whether, throughout a continuous qualifying period which began before the specified date in which they rely on having been ‘a person with a derivative right to reside’, the applicant met the additional requirements of that definition set out in section 3, 4, 5 or 6 of this guidance
stage 2: applicant then immediately switched to another qualifying category and remained in such a category: assessing whether, on ceasing to be a ‘person with a derivative right to reside’, before or after the specified date, the applicant immediately became a relevant EEA citizen, a family member of a relevant EEA citizen, a person with a Zambrano right to reside or a family member of a qualifying British citizen, and has since remained in any of those categories

EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members EU Settlement Scheme: family member of a qualifying British citizen

Appendix EU to the Immigration Rules

Question 64

Stage 1: Applicant met the definition of a ‘person with a derivative right to reside’

Accepted Answer

The first additional stage is to consider whether, throughout a continuous qualifying period which began before the specified date in which they rely on having been ‘a person with a derivative right to reside’, the applicant met the additional requirements of that definition set out in section 3, 4, 5 or 6 of this guidance.

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About this guidance

The best interests of the child

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Publication

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Introduction

Relevant EEA family permit case

Applications to switch from pre-settled to settled status

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Section 1: Overview of eligibility requirements

Who is a ‘person with a derivative right to reside’?

Chen primary carer cases

Ibrahim and Teixeira children and primary carer cases

Dependant of the primary carer cases

Resident for a continuous qualifying period in the UK which began before the specified date and throughout which the relevant criteria are met

Relevant period

Who is a ‘person who had a derivative or Zambrano right to reside’?

Making an application: deadline

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Section 2: All applications – initial eligibility requirements

Exempt person

Subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect

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Section 3: Eligibility – Chen primary carer

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Stage 1: Primary carer

Primary carer

Assessing ‘direct relative’ or ‘legal guardian’

Conclusion on stage 1

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Stage 2: EEA citizen child under 18

EEA citizenship

Age

Conclusion on stage 2

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Stage 3: EEA citizen child resides in the UK as a self-sufficient person

Resides in the UK

Income from the primary carer

Income from other sources

Comprehensive sickness insurance

An unreasonable burden on the UK’s social assistance system?

Conclusion on stage 3

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Stage 4: EEA citizen child unable to remain in the UK

Could the relevant EEA citizen child remain in the UK?

Alternative care arrangements

Conclusion on stage 4

Overall conclusion

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Section 4: Eligibility – Ibrahim and Teixeira child

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Stage 1: Child in education in the UK

Education

Conclusion on stage 1

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Stage 2: Child of an EEA citizen

EEA citizenship

Adopted children and step-children

Relationship between child and EEA citizen

Conclusion on stage 2

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Stage 3: Child in the UK when EEA citizen parent was a worker or self- employed person in the UK

Worker

Self-employed person

Child in the UK

Conclusion on stage 3

Overall conclusion

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