EEA Regulations: retained rights v derivative rights.

By 1st 4Immigration - #1 UK Immigration Experts -
The current EEA Regulations have a provision for both of the above but what is the difference? The EEA law in general can be a minefield, with the ever-changing Regulations in the way of various Amendments rather than all rules in one documents. Here we explain retained right versus derivative rights.

RETAINED RIGHT OF RESIDENCE: In some cases a family member of an EEA citizen can retain a right of residency in the UK. The most common example is a non-EEA spouse who can remain in the UK following the divorce. There are requirements to meet, such as having been married for 3 years and actually being divorced on the date of application (plus more rules, this is just an example). Unmarried partners can’t retain the right, though, only spouses and civil partners, ie ‘married partners’.  

The main difference is this: those who retain a right of residence can eventually apply for a permanent residency status. Those who have a derivate right – can’t.

DERIVATIVE RIGHT OF RESIDENCE: For example, it covers a primary carer of an EEA or British citizen, which is based on Rui Zambrano case. So, requiring a carer to leave the UK (such as if he/she does not have a UK visa) would force an EEA national to leave the European Union. This provision allows a non-EEA citizen carer to remain in the UK to look after the EEA national in question to reside in the UK. An EEA national is often a child but can be an adult requiring looking after as well. The downside is this does not lead to permanent residency.

This right is “derived” from Article 20 of the Treaty on the Functioning of the European Union (TFEU) and not from Directive 2004/38/EC (the free movement Directive), on which the EEA Regulations are based.

For an individual advice or to make an application please contact us: info@1st4immigration.com or visit www.1st4immigration.com

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