CBTM10080 - Residence and Immigration: Residence - Right to reside on basis of child who is an EEA or Swiss national or in UK education

Right to reside on the basis of a child in UK education

The primary carer of a child in UK education does not need to be an EEA or Swiss national. The primary carer and the child’s nationality are not relevant however, the following three circumstances must exist in order for this right to reside to arise -

  • The child is in formal education in the UK - this means compulsory schooling: so primary, secondary school, sixth form school and or non-advanced further education provided by a college and is under age 18 and
  • any of the child’s parents is an EEA national and
  • both the child and the EEA parent resided in the UK at the same time and during a period of residence the EEA parent has been in or is currently in Genuine and Effective employment or self-employment in the UK.

The primary carers right to reside can continue beyond the child’s age of 18 but only where there are compelling circumstances which mean the child continues to need the care of the primary carer to continue in education.

Council Regulation (EEC) 1612/68 - Article 12 and Court of Justice of the European Union (CJEU) Cases Ibrahim and Teixeira  and superseded by Article 10 of Regulation (EU) 492/2011.

 

 

Right to reside on the basis of being the primary carer of a child who is an EEA or Swiss national 

A rest of the world national can have a right to reside in the UK where they are the primary carer of a child who: 

  • Is an EEA or Swiss national and
  • Would be unable to remain in the United Kingdom if the primary carer left the United Kingdom for an indefinite period and
  • Holds sufficient resources to prevent them and their primary carer, from becoming a burden on the social assistance system of the UK and
  • Has Comprehensive Sickness Insurance. 

The Court of Justice of the EU, in case C-200/02 (Kunqian Catherine Zhu, Man Lavette Chen v Secretary of State for the Home Department - Regulation 16 of the Immigration (European Economic Area) Regulations 2016.  

 


However, where a child is an EU citizen, and acquired the right of permanent residence in the host State, the child and their primary carer are not required to have Comprehensive Sickness Insurance for the child to retain their right of residence.

Therefore, a rest of the world national has a right to reside where they are the primary carer of a child who:  

  • is an EEA or Swiss national and
  • has permanent residence under the Residence Directive 2004/38/EC and the Immigration (EEA) Regulations 2016 or settled status under the EU Settlement Scheme. 

C247/20 (VI v The Commissioners for Her Majesty’s Revenue & Customs).