Chen vs Ibrahim and Teixeira

Hi,

I am posting details regarding retained rights of residence and see what options my sister has.

My brother in law had been living in the UK for last 2 years as an EEA national while my sister(Pakistani citizen) and their 2 kids (7 years and 4 years old and both Italian citizens via their father) were living in Pakistan from the last couple of years. Last year in August, my brother-in-law was diagnosed with lung cancer and it was an advanced stage. My sister and her two kids traveled to the UK and joined him as EEA dependent in October 2019. My brother-in-law applied and got his pre-settlement in September while my sister and their kids applied and got their pre-settlement in January this year and my sister received her BRP for 5 years visa.

My brother-in-law has sadly passed away last week due to his cancer and according to UK government policy and with my discussions with friends and family, my sister and her two kids lose their right to stay in the UK as they hadn't been living for one year in the UK before the death of their EEA sponsor and their pre-settlement status is null and void.

Is there any way my sister can stay in the country by keeping her retained rights? Her kids, both Italian citizens, have been going to school for the last few months. Can she stay as a parent to the EEA citizens and if yes, does she need to apply for a new visa?

Waseem432000 wrote: ↑

Mon Apr 20, 2020 7:48 pm

Is there any way my sister can stay in the country by keeping her retained rights?

Not on retained rights, as you have correctly summarised in your post.

Waseem432000 wrote: ↑

Mon Apr 20, 2020 7:48 pm

Her kids, both Italian citizens, have been going to school for the last few months. Can she stay as a parent to the EEA citizens and if yes, does she need to apply for a new visa?

Yes, she can stay in the UK on the basis of being the parent of EEA citizen children living in the UK. These are called Chen cases. See here for more information and application form and guidance on how caseworkers would assess the cases.

And yes, she will need to make a fresh application.

Thanks for your quick reply. Is it safe to assume that her pre-settlement status is null and void after the EEA sponsor's death?

I can understand that she can't use that time on the derivative right of residence to apply for permanent residency but can she apply as a parent of an EEA child when they are granted ILR after completing 5 years on the pre-settlement document?

Her younger child is 4 years old does that mean she can stay in the UK for 14 years (before he turns 18) and can she apply for a long residency route or anything else in the future?

I posted a question on the forum last week and someone kindly guided me towards Chen cases as one way of staying in the UK for my sister who was the wife of an EEA citizen who sadly passed away while my sister only joined him 6 months back in the UK and only got her pre-settlement earlier this year.

We are thinking about applying for one of the routes for derivative routes and I have read about Chen and Ibrahim and Teixeira routes. I am currently trying to understand the difference between both routes. According to information available on the internet and this forum, for Chen cases, EEA child must be self-sufficient while for Ibrahim and Teixeira cases, the child needs to be in full-time education but there is no provision of self-sufficient.

Is there any other difference other than that? If there isn't any major difference except that and both children are in full-time education, it surely makes more sense to go for Ibrahim and Teixeira route.

I don't see much of a difference between the two. Both of them lead to the issue of a derivative residence card.

Keep in mind that benefits can't be claimed for holders of a derivative benefits card. So effectively the family will have to be self-sufficient anyway.

Did your brother work in the UK at any point prior to his demise, and are 7 years old and 4 years old in school at present.

Obie wrote: ↑

Wed Apr 29, 2020 11:35 am

Did your brother work in the UK at any point prior to his demise, and are 7 years old and 4 years old in school at present.

Yes. My brother-in-law worked in a food packing factory and also in a takeaway before he was diagnosed with lung cancer and yes, both kids are studying in schools.

secret.simon wrote: ↑

Wed Apr 29, 2020 8:54 am

I don't see much of a difference between the two. Both of them lead to the issue of a derivative residence card.

Keep in mind that benefits can't be claimed for holders of a derivative benefits card. So effectively the family will have to be self-sufficient anyway.

My sister has gotten a job recently and she plans to work full time to support her kids.

My sister spoke to a law firm who helped her get the EU-Settlement as a pro-bono case and she spoke to them again earlier this week and according to one of the lawyers, if she can prove that she was with her husband in the UK when he passed away, that makes up for the minimum one years they had to stay together in the UK. I don't think this is the case else HomeOffice would have mentioned that explicitly.

I have also read that derivative rights visa holders can happy for EU settlement after 5 years due to immigration law changes in March last year but can't seem to find any confirmation of that anywhere either.

The advise the gave to her is correct, she was not residing in the UK in the 12 months preceding the death of the qualified person.

Therefore as Secret Simon correctly stated, she could not retain a right of residence based on the marriage, as she had only been living in the UK for 6 month prior to the Qualified person's demise.

However she may qualify under Ibrahim Teixeira.

Obie wrote: ↑

Wed Apr 29, 2020 2:49 pm

The advise the gave to her is correct, she was not residing in the UK in the 12 months preceding the death of the qualified person.

Therefore as Secret Simon correctly stated, she could not retain a right of residence based on the marriage, as she had only been living in the UK for 6 month prior to the Qualified person's demise.

However she may qualify under Ibrahim Teixeira.

You mean incorrect advice, right? Because they somehow seem to think that if she was in the UK immediately before the death of her EEA sponsor, that waives off the one year period of them being together in the UK but I am sure there is no provision like that in the law. I will advise her to go for a derivative residence or get her own Italian passport and then apply for EU settlement which may take a long time.

Obie wrote: ↑

Wed Apr 29, 2020 2:49 pm

The advise the gave to her is correct, she was not residing in the UK in the 12 months preceding the death of the qualified person.

Therefore as Secret Simon correctly stated, she could not retain a right of residence based on the marriage, as she had only been living in the UK for 6 month prior to the Qualified person's demise.

However she may qualify under Ibrahim Teixeira.

That's their email which she received.

"To satisfy the third element of the rule, you just need to show that you were living in the UK with your husband immediately before his death. You don’t have to have lived with him for one year before his death.

So the fact that you were living with him since you arrived in October 2019 until his death would meet the rule."

I respectfully disagree with the advise given.

Regulation 10 (2)(b), can under no circumstances be read in that way.

Obie wrote: ↑

Wed Apr 29, 2020 4:14 pm

I respectfully disagree with the advise given.

Regulation 10 (2)(b), can under no circumstances be read in that way.

My understanding is exactly the same. Thanks for your help and guidance.

appologies for digging up an old thread but I want to post an update in case anyone comes to this thread.

I called EU resolution centre on behalf of my sister last week to report a change of circumstances and see if they recomend us anything as we have spoken to bunch of solicters all of them have different opinion of the case but all of them agreed that we need to inform EU resolution centre with change of circumstances.

The lady whome I spoke with, took my sister's information, my deceased brother in law's information and then asked us to hold as she discus the situation with her supervisor as it was a unique situation for them and after a good 5 minutes on hold, told us that she has noted down the change of circumstances and according to her, my sister has rights to to stay in the UK on her pre-settlement document for 5 years along with her kids and they don't need to file a new application. They will need to prove they have retained rights to stay in the UK after 5 years when they apply for a settlement as it will be a complex case then but she doesn't need to file any new immigration application till then.

I am not sure if a third party runs that resolution centre operation for the UK government but I just wasn't too satisfied with how they handled the whole situation and the lady on phone was more confused than us.

Waseem432000 wrote: ↑

Sun Aug 16, 2020 2:19 pm

I am not sure if a third party runs that resolution centre operation for the UK government

The UKV&I contact centre is indeed outsourced and will likely not be able to assist accurately with any non-standard situations.

secret.simon wrote: ↑

Sun Aug 16, 2020 2:33 pm

Waseem432000 wrote: ↑

Sun Aug 16, 2020 2:19 pm

I am not sure if a third party runs that resolution centre operation for the UK government

The UKV&I contact centre is indeed outsourced and will likely not be able to assist accurately with any non-standard situations.

That's exactly what I thought. Do you suggest we should call again and ask them for any confirmation in shape of a letter or email that we have called them for change of circumstances? The scenerio I am fearing most is for my sister to fly out of the country only to be stopped at immigration counter on her way back and informed that she wasn't suppose to fly without a new immigration status.

To quote my colleague @Zimba, don't rely on telephone conversations nor correspondence with the Home Office.

Keep in mind that even written correspondence does not bind the UKV&I if it contained errors of interpretation.

@ lolwe, Moderators and Gurus.
Please should in case of any eventuality, are there laws which cover people on Ibrahim & Teixeira derivative right in the EU Withdrawal bill and Appendix EU? Please i will really appreciate it if you can respond to my post.

star31 wrote: ↑

Mon Nov 16, 2020 2:40 pm

@ lolwe, Moderators and Gurus.
Please should in case of any eventuality, are there laws which cover people on Ibrahim & Teixeira derivative right in the EU Withdrawal bill and Appendix EU? Please i will really appreciate it if you can respond to my post.

Hi Star, Great questions.

Are Ibrahim and Teixeira applicants covered in Appendix EU? Yes. See the derivative category.

Eligibility for indefinite leave to enter or remain

(a) The applicant:
(i) is a relevant EEA citizen; or
(ii) is (or, as the case may be, for the relevant period was) a family member of a relevant EEA citizen; or
(iii) is (or, as the case may be, for the relevant period was) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
(iv) is a person with a derivative right to reside; or
(v) is a person with a Zambrano right to reside; or
(vi) is a person who had a derivative or Zambrano right to reside; and

(b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and

(c) Since then no supervening event has occurred

Eligibility for limited leave to enter or remain

(a) The applicant is:
(i) a relevant EEA citizen; or
(ii) a family member of a relevant EEA citizen; or
(iii) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
(iv) a person with a derivative right to reside; or
(v) a person with a Zambrano right to reside; and

(b) The applicant is not eligible for indefinite leave to enter or remain under this Appendix solely because they have completed a continuous qualifying period of less than five years


Are Ibrahim and Teixeira applicants covered in Withdrawal Agreement?
No. Per the Withdrawal Agreement,

RECOGNISING that it is necessary to provide reciprocal protection for Union citizens and for United Kingdom nationals, as well as their respective family members, where they have exercised free movement rights before a date set in this Agreement, and to ensure that their rights under this Agreement are enforceable and based on the principle of non-discrimination; recognising also that rights deriving from periods of social security insurance should be protected,

The Ibrahim and Teixeira right of residence is not a Free Movement right but is a "derivative right". This means that the recognition of this right by the UK is not equal to rights under Directive 2004/38/EC (“the Directive”). Recognition of a derivative right does not result in the beneficiary of that right being treated as a qualified person for the purposes of the Regulations and therefore such a person cannot sponsor family members under the Regulations. Nor does recognition of such a derivate right attract the public policy protection against removal or deportation from the United Kingdom that is given to those exercising free movement rights or entitle the beneficiary to rights of permanent residence in the UK.

But I think you should ask, are family members of EU citizens covered by the Withdrawal Agreement? If so, what are the requirements to be considered a family member? See

https://assets.publishing.service.gov.u ... munity.pdf

Further Information about Ibrahim and Teixeira

In the cases of Ibrahim and Teixeira, the ECJ ruled that, by virtue of Article 10 of Regulation 492/2011 (i) the children of an EU citizen who works or has worked in the host Member State (who are in education in that State), and (ii) the primary carer of those children, can claim a right of residence in that State.

A person who meets the criteria for a derivative right of residence does, however, qualify for a right of admission to the UK under amended regulation 11; a right to an EEA family permit under amended regulation 12; and a right to a derivative residence card under regulation 18A.

Derivative rights of residence only arise where the person in question has no other right to reside under the Regulations. It is not therefore possible for someone to have a derivate right and some other right of residence under the Regulations.

A person who meets the definition of primary carer as set out in regulation 15A(7) may apply for a derivative residence card confirming a right of residence under regulation 15A(4) where they meet the conditions set out in that regulation. The conditions for a right to reside under 15A(4) are that:

a) the applicant is the primary carer of a person who meets the criteria set out in category (A) above; and
b) the child would be unable to continue to be educated in the UK if the primary carer were required to leave.

Further information on the Withdrawal Agreement Hope this helps...

...........

Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community PART TWO CITIZENS' RIGHTS, TITLE I, GENERAL PROVISIONS, ARTICLE 9 Definitions

For the purposes of this Part, and without prejudice to Title III, the following definitions shall apply:

(a) "family members" means the following persons, irrespective of their nationality, who fall within the personal scope provided for in Article 10 of this Agreement:

(i) family members of Union citizens or family members of United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council1;

..........

DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004 CHAPTER I General provisions Article 2 Definitions

For the purposes of this Directive:
2) "Family member" means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

..........

Per the Home Office: Derivative rights of residence – Ibrahim/Teixeira cases

This right of residence is not a Free Movement right but is a "derivative right‟. This means that the recognition of this right by the UK is not equal to rights under Directive 2004/38/EC (“the Directive”).

lolwe wrote: ↑

Mon Nov 16, 2020 4:09 pm

Further information on the Withdrawal Agreement Hope this helps...

...........

Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community PART TWO CITIZENS' RIGHTS, TITLE I, GENERAL PROVISIONS, ARTICLE 9 Definitions

For the purposes of this Part, and without prejudice to Title III, the following definitions shall apply:

(a) "family members" means the following persons, irrespective of their nationality, who fall within the personal scope provided for in Article 10 of this Agreement:

(i) family members of Union citizens or family members of United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council1;

..........

DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004 CHAPTER I General provisions Article 2 Definitions

For the purposes of this Directive:
2) "Family member" means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

..........

Per the Home Office: Derivative rights of residence – Ibrahim/Teixeira cases

This right of residence is not a Free Movement right but is a "derivative right‟. This means that the recognition of this right by the UK is not equal to rights under Directive 2004/38/EC (“the Directive”).

lolwe, thank you so much, this go a long way but does Section 3C cover this category of people if they have not been answered by 31 December with either deal or no deal.

star31 wrote: ↑

Mon Nov 16, 2020 5:34 pm

lolwe wrote: ↑

Mon Nov 16, 2020 4:09 pm

Further information on the Withdrawal Agreement Hope this helps...

...........

Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community PART TWO CITIZENS' RIGHTS, TITLE I, GENERAL PROVISIONS, ARTICLE 9 Definitions

For the purposes of this Part, and without prejudice to Title III, the following definitions shall apply:

(a) "family members" means the following persons, irrespective of their nationality, who fall within the personal scope provided for in Article 10 of this Agreement:

(i) family members of Union citizens or family members of United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council1;

..........

DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004 CHAPTER I General provisions Article 2 Definitions

For the purposes of this Directive:
2) "Family member" means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

..........

Per the Home Office: Derivative rights of residence – Ibrahim/Teixeira cases

This right of residence is not a Free Movement right but is a "derivative right‟. This means that the recognition of this right by the UK is not equal to rights under Directive 2004/38/EC (“the Directive”).

lolwe, thank you so much, this go a long way but does Section 3C cover this category of people if they have not been answered by 31 December with either deal or no deal.

Hi Star,

I am not 100% confident about what the UK will do if there is no deal.

I heard this Thursday is a final deadline. But that has been said before.

Maybe one of the moderators can answer your question?

lolwe wrote: ↑

Mon Nov 16, 2020 6:46 pm

star31 wrote: ↑

Mon Nov 16, 2020 5:34 pm

lolwe wrote: ↑

Mon Nov 16, 2020 4:09 pm

Further information on the Withdrawal Agreement Hope this helps...

...........

Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community PART TWO CITIZENS' RIGHTS, TITLE I, GENERAL PROVISIONS, ARTICLE 9 Definitions

For the purposes of this Part, and without prejudice to Title III, the following definitions shall apply:

(a) "family members" means the following persons, irrespective of their nationality, who fall within the personal scope provided for in Article 10 of this Agreement:

(i) family members of Union citizens or family members of United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council1;

..........

DIRECTIVE 2004/38/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2004 CHAPTER I General provisions Article 2 Definitions

For the purposes of this Directive:
2) "Family member" means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

..........

Per the Home Office: Derivative rights of residence – Ibrahim/Teixeira cases

This right of residence is not a Free Movement right but is a "derivative right‟. This means that the recognition of this right by the UK is not equal to rights under Directive 2004/38/EC (“the Directive”).

lolwe, thank you so much, this go a long way but does Section 3C cover this category of people if they have not been answered by 31 December with either deal or no deal.

Hi Star,

I am not 100% confident about what the UK will do if there is no deal.

I heard this Thursday is a final deadline. But that has been said before.

Maybe one of the moderators can answer your question?

@ lolwe, thank you for your honesty.
@ JB007,Obie and Secret. Simon, please can you help out?

The Citizens right has been settled in the withdrawal agreement, and therefore citizens rights is not dependent on the UK future relationship, as that has bee resolved.

Section 3C is engaged in relation to settled status application, and therefore people applying who held leave before applying under that provision, will be covered by Section 3C.