New EEA rule: derivative residence

[big_ibra]

Well, it’s been a while since the case of Chen was decided, but the UK has finally got around to implementing it – after a fashion – with the new EEA rules in today on “derivative residence.” The new Rule 15A will also implement Ibrahim and Teixeira.

The text of the new rule is set out below, but as a broad summary, what it means is that

1. The primary carer of a minor EEA national will be entitled to a derivative residence card – although the child must have health insurance;
2. The child of an EEA national, and his / her non-EEA parent, will be entitled to derivative residence if the child(ren) are in school and were entitled to be here under the EEA Regulations when they went to school first (e.g. the EEA national parent did have a job but lost it, and the children are in education here). The non-EEA parent only gets the right to reside where requiring them to leave would prevent the child from continuing in education in the UK.

The derivative residence status will not confer Indefinite Leave on the recipient, although that may well be subject to challenge.



“15A. Derivative right of residence

(1) A person (“P”) who is not entitled to reside in the United Kingdom as a result of any other provision of these Regulations and who satisfies the criteria in paragraph (2), (3), (4) or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.

(2) P satisfies the criteria in this paragraph if—

(a)P is the primary carer of an EEA national (“the relevant EEA national”); and

(b)the relevant EEA national—

(i)is under the age of 18;

(ii)is residing in the United Kingdom as a self-sufficient person; and

(iii)would be unable to remain in the United Kingdom if P were required to leave.

(3) P satisfies the criteria in this paragraph if—

(a)P is the child of an EEA national (“the EEA national parent”);

(b)P resided in the United Kingdom at a time when the EEA national parent was residing in the United Kingdom as a worker; and

(c)P is in education in the United Kingdom and was in education there at a time when the EEA national parent was in the United Kingdom.

(4) P satisfies the criteria in this paragraph if—

(a)P is the primary carer of a person meeting the criteria in paragraph (3) (“the relevant person”); and

(b)the relevant person would be unable to continue to be educated in the United Kingdom if P were required to leave.

(5) P satisfies the criteria in this paragraph if—

(a)P is under the age of 18;

(b)P’s primary carer is entitled to a derivative right to reside in the United Kingdom by virtue of paragraph (2) or (4);

(c)P does not have leave to enter, or remain in, the United Kingdom; and

(d)requiring P to leave the United Kingdom would prevent P’s primary carer from residing in the United Kingdom.

(6) For the purpose of this regulation—

(a)“education” excludes nursery education; and

(b)“worker” does not include a jobseeker or a person who falls to be regarded as a worker by virtue of regulation 6(2).

(7) P is to be regarded as a “primary carer” of another person if

(a)P is a direct relative or a legal guardian of that person; and

(b)P—

(i)is the person who has primary responsibility for that person’s care; or

(ii)shares equally the responsibility for that person’s care with one other person who is not entitled to reside in the United Kingdom as a result of any other provision of these Regulations and who does not have leave to enter or remain.

(8) P will not be regarded as having responsibility for a person’s care for the purpose of paragraph (7) on the sole basis of a financial contribution towards that person’s care.

(9) A person who otherwise satisfies the criteria in paragraph (2), (3), (4) or (5) will not be entitled to a derivative right to reside in the United Kingdom where the Secretary of State has made a decision under regulation 19(3)(b), 20(1) or 20A(1).”.
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Source: http://www.directimmigration.co.uk/new- ... residence/[/b]

[big_ibra]

In EEA Regulations on July 16, 2012

[Ayan]

I have applied under the same ruling and my son is an eu citizen and is in primary education, i am the sole carer for him as mother left ireland.
DOJ gave me stamp 3
I lost my job because i was on stamp 4 EUFAM which was not possible to be extended.
My solicitor said they will bring the case to high court but i dont have any savings to survive here with my son as i am jobless for last 2 months.

Is there any chance i can get stamp 4 or
I can claim any kind of assistance from social welfare while i am unemployed.
I never claim any benefit and i was paying taxes for last 8 years while on student visa and on stamp 4

Thans in advance for any helpful suggestions
DOJ apply Ibrahim vs Texaria judgement in my case but unfortunatley the issued me stamp 3 residence only

[Obie]

You post is best placed in the Ireland section and i have addressed it there.