EUSS Derivative Right to Reside: Chen and Ibrahim/Teixeira

What is a derivative right to reside under the EUSS?

It is a right to live in the UK that came from wider EU law rather than the Free Movement Directive, confirmed by the court judgments in Chen, Ibrahim and Teixeira. It belongs to a carer or child because of their link to an EEA citizen child or an EEA citizen worker, rather than to them in their own right.

Derivative rights to reside ended in the UK at 11pm on 31 December 2020. Unlike Zambrano cases, Chen and Ibrahim/Teixeira cases are covered by the Withdrawal Agreement and the other citizens' rights agreements, which protect the previous right to reside but not a right to permanent residence. The UK chose, as a more generous domestic provision, to give these people access to the EU Settlement Scheme, including the possibility of settled status.

How ENS can help with a derivative right to reside case

Many people relying on this category already hold pre-settled status as a Chen or Ibrahim/Teixeira carer, child or dependant. We can review the history and tell you whether we can help with the next step.

Can you still apply as a person with a derivative right to reside?

The guidance does not describe a separate closure for this category of the kind that applies to Zambrano and qualifying British citizen cases. Instead, an application must be made by the ordinary EUSS “required date”, and can be made after that deadline only where there are reasonable grounds for the delay.

For people living in the UK by the end of the transition period, the EUSS deadline was 30 June 2021. A first application made now will therefore usually be a late application, and the reasons for the delay will matter. Separately, the qualifying residence itself must have begun by 31 December 2020 — see dates and residence conditions.

If you already hold pre-settled status on this basis, see moving to settled status. On reasonable grounds for a late application, see our late applications guide. Applications in this category use the required paper application form.

Who is a person with a derivative right to reside?

Appendix EU defines four groups. In every case, the conditions must be met throughout a continuous qualifying period of UK residence that began before 11pm on 31 December 2020, and the person must not be an “exempt person” or subject to certain removal, revocation or misuse-of-rights decisions under the former EEA Regulations.

Who is an “exempt person”?

Someone who had a right to reside under the former EEA Regulations other than a derivative right (for example as an EEA citizen or family member), someone with the right of abode such as a British citizen (the application is void), someone exempt from immigration control, or someone with indefinite leave. Apart from the right of abode case, the Home Office then considers other EUSS categories instead.

The guidance notes that an EEA citizen could rely on their own residence, so a person needing these provisions is likely to be a non-EEA citizen.

Chen EUSS cases: the primary carer of a self-sufficient EEA citizen child

A Chen carer is the primary carer of an EEA citizen child under 18 who lives in the UK with enough resources not to become a burden on the UK's social assistance system. The carer must show that the child would in practice be unable to remain in the UK if the carer left indefinitely. The Home Office assesses four stages.

Which children count as EEA citizens?

A national of an EU country, Iceland, Liechtenstein, Norway or Switzerland who is not also British, or a “relevant naturalised British citizen” (a Lounes dual national). The guidance says a McCarthy dual national and a relevant person of Northern Ireland do not count, because a carer of such a child did not have a Chen right to reside.

Self-sufficiency: what the guidance looks at

• Carer's income can be relied on. The guidance also allows funds from employment without permission, provided it did not involve criminal activity.
• Other sources such as rental income or savings accessible to the child can be accepted.
• Comprehensive sickness insurance is not required. The guidance tells caseworkers not to ask for evidence of it.
• Social assistance: receiving public funds directly or through the carer (including Asylum Support for the child) does not automatically mean failure. The Home Office must make an individual assessment of the amount, the period, whether the child is a primary beneficiary, and whether refusal would be reasonable and proportionate.

Ibrahim and Teixeira EUSS cases: children in education and their primary carers

An Ibrahim/Teixeira child is in education in the UK and lived in the UK at a time when their EEA citizen parent was working or self-employed here. The child's primary carer can also qualify where the child would in practice be unable to continue their education in the UK if the carer left. The child may have turned 18.

The child: three stages

What counts as the parent working?

• There is no minimum period of work or self-employment, as long as the child was in the UK at the same time. Work under the EU8 and EU2 worker schemes counts.
• The parent does not need to have been working while the child was in education.
• A jobseeker does not count, and nor does someone no longer working who was only treated as retaining worker or self-employed status.

The primary carer: three stages

1. You are the child's primary carer — a parent, grandparent, brother or sister, or legal guardian with primary or equally shared responsibility.
2. The child meets the Ibrahim/Teixeira child conditions above throughout the period you rely on.
3. The child would in practice be unable to continue their education in the UK if you left indefinitely — because they would be compelled to leave with you.

How is the “if the carer left the UK” test applied?

For both Chen and Ibrahim/Teixeira carers, the Home Office asks what would actually happen if the carer were required to leave the UK indefinitely: would the child stay without them, or leave with them? This is a fact-based enquiry, not a hypothetical one, assessed over the qualifying period and, if under 5 years, at the date of application.

• Sole carer in a single-adult household: the Home Office will usually accept the child would leave the UK with the carer.
• Shared care: it weighs the other carer's circumstances (including whether they live lawfully in the UK), the child's age, physical and emotional development, emotional ties to each carer, the risk to the child's stability from separation, and any other relevant factor.
• The child's best interests are a primary consideration, but not decisive on their own.
• Unsuitable carers: child protection concerns can make another carer unsuitable; inconvenience, lack of money or unwillingness alone does not.
• Two primary carers can both qualify only if they took on equal care at the same time.

Can the primary carer's other children qualify?

Yes. A dependant under 18 of a Chen or Ibrahim/Teixeira primary carer can qualify where that carer is also their primary carer, the carer meets the Chen or Ibrahim/Teixeira carer definition, and the carer would in practice be prevented from living in the UK if the dependant left the UK indefinitely. The dependant must hold no other UK leave.

• Age: under 18, unless already granted pre-settled status on this basis following an application made while under 18.
• Relationship: the carer is the dependant's parent, grandparent, brother or sister, or legal guardian.
• Carer's status: usually shown by the carer's EUSS grant on this basis — but the carer does not have to apply first, as long as the dependant can show the carer meets the definition.

What date and residence conditions apply?

Your continuous qualifying period as a person with a derivative right to reside must have begun before 11pm on 31 December 2020 and been continuing at that time. It must then either still be continuing when you apply, or have ended only when you completed 5 years with no supervening event since.

Earlier time as a family member of a qualifying British citizen can also count towards the 5-year period. Absences are covered on our EUSS continuous residence page — a different framework from Appendix Continuous Residence.

How do you move from pre-settled to settled status on this basis?

By applying for settled status once you have completed a 5-year continuous qualifying period. The Home Office does not generally revisit the original grant, but it checks that you held no other limited leave at 31 December 2020 or at your first application, and that the requirements kept being met from your first application onwards.

• Other leave: if pre-settled status was granted when you held other leave, the settled status application will be refused — unless the Home Office or a tribunal or court found that the child would still have been unable to remain (or continue education), or the carer would still have been prevented from residing.
• Absences of the child: more than 6 months outside the UK breaks the Chen child's or Ibrahim/Teixeira child's continuous qualifying period. A two-week holiday does not; moving abroad with the other parent and only visiting does.
• Continuing requirements: between your first application and your current one (or until you completed 5 years, if earlier), the Chen child must have remained self-sufficient; the Ibrahim/Teixeira child must have stayed in education, and their EEA citizen parent must have been a worker or self-employed person in the UK; the carer must have remained the primary carer; the practical test must have continued to be met; and a dependant must not have held other leave, unless of a permitted type.
• Children who have turned 18: for a Chen primary carer, the EEA citizen child must still be under 18. For an Ibrahim/Teixeira carer, the child may have turned 18, and the Home Office considers whether the carer is still a direct relative or guardian. A dependant does not need to still be under 18 if they were under 18 before 31 December 2020 and at their first application.

EU settled status in full →

What evidence supports a derivative right to reside application?

Evidence must cover each stage of the test for your group across the whole qualifying period. The Home Office is told to work flexibly with applicants to evidence residence by the best means available. Copies are accepted, but originals can be requested where there is reasonable doubt.

What outcome can a derivative right to reside applicant expect?

If the definition is met, the outcome depends on the length of the continuous qualifying period. With 5 years, and no supervening event since, the applicant is considered for settled status. With less than 5 years, they are considered for pre-settled status (5 years' limited leave). Both are subject to the EUSS suitability requirements.

See also EUSS suitability and cancellation and curtailment.

Why these cases often need individual advice

Chen and Ibrahim/Teixeira cases sit on detailed facts: the child's resources and any use of public funds, who provides care, the EEA parent's work history, past leave and, for first applications now, the reasons for applying late. These points are often not straightforward, and a careful individual assessment before applying is usually worthwhile.

If an application is refused

A refusal letter will explain the reasons and the options available. Get advice promptly. ENS does not provide appeal or tribunal representation; start with our immigration help page.

Related ENS guidance

Frequently asked questions