There are parents in the UK who are not EEA nationals however, their children are considered to be EEA nationals. As such, a parent of an EEA national child may be eligible to rely on certain provisions within EU law which permits the parent of an EEA national child to legally remain in the UK based on their relationship with their EEA national child.
Generally, if a non-EEA national is not able to rely on the rights of residence under the Free Movement Directive 2004/38/EC, he/she may be eligible to rely on provisions and rights derived from other areas of EU law such as EU case law. This has been enshrined by UK law through the Immigration (EEA) Regulations 2016; the potential rights of primary carers based on their relationship with their EEA national or British children is covered by Regulation 16 of the Immigration (EEA) Regulations 2016. Such rights are referred to as derivative rights as the non-EEA national parent is seeking to derive their rights to reside in the UK from other instruments of EU law.
One derivative right of residence that some non-EEA national parents may rely on was enforced by the landmark case of Chen v SSHD  ECR I-9925 which is now implemented by Regulation 16 (2) of the Immigration (EEA) Regulations 2016.
What happened in the case of Chen v SSHD  ECR I-9925?
The case concerned Ms Chen who was a Chinese national who had relocated to Northern Ireland in order to give birth to her child; her child was subsequently born in Northern Ireland and was registered as an Irish citizen as required under the Irish Constitution at the time.
Following the birth of Ms Chen’s daughter, they attempted to relocate to the UK however, they were refused leave to remain by the Home Office. As Ms Chen’s daughter was born in Northern Ireland, the Chinese government considered the child to hold Irish citizenship which meant that Ms Chen could not return to China with her daughter as she did not have the same residential rights as Ms Chen. Due to this, Ms Chen’s daughter would need to apply for permission to remain in China for a maximum of 30 days at a time. As such, requiring Ms Chen to depart from the UK would be the sole cause of the separation from her daughter.
The judgment concluded that the act of denying Ms Chen the right to reside in the UK in order to be with her minor daughter, would be completely contrary to the child’s best interests and would equally be contrary to Article 8 of the European Convention on Human Rights (ECHR) which protects an individual’s right to respect for a private and family life. Consequently, Ms Chen was able to derive a right of residence from the rights granted to her EEA national child as she was the primary carer of an EEA national. In addition to this, requiring the EEA national child to depart the UK with her non-EEA national parent would render her treaty rights as ineffective as she would not have been able to exercise her free movement rights outside the EEA and UK.
If your circumstances are similar to that of the above case, please contact us today and we will assess your circumstances in detail and advise you accordingly on your best options.
What are the requirements for applying as a primary carer of an EEA national child under the Chen ruling?
The first requirement of applying for a derivative right of residence on the basis of Chen is that the child is an EEA national under the age of 18. In order to demonstrate that this requirement is met, the applicant must provide relevant and official documents to the Home Office.
The further requirement is that the EEA national child must be self-sufficient which can be determined by considering whether the EEA national child is exercising free movement rights in the UK which renders them as self-sufficient. In order to demonstrate self-sufficiency, an EEA national child must have comprehensive sickness insurance for themselves as well as the primary carer. Further to the above, it must be shown that there are sufficient resources available to the EEA national child and the primary carer to prevent them from becoming a burden on the state by having recourse to public funds.
It is vital to note that an EEA national child can rely on the income received by their primary carer in order to prove self-sufficiency however, the income relied upon must be obtained through lawful employment. This is possible for primary carers who hold leave under a different visa category. However, this requirement can cause an issue as not all primary carers would be able to secure lawful employment, especially those who do not have legal status in the UK.
Consequently, the Immigration (EEA) Regulations 2016 enable primary carers with a derived right of residence to secure employment lawfully in the UK in cases where an official document has not been issued confirming their derived right of residence. In order for a primary carer to rely on this provision, it must be shown that the EEA national child was self-sufficient before employment was secured by the primary carer. This means that there were resources available to the EEA national child which meant that he/she was not a burden on the state. It must be shown that that the EEA national child was self-sufficient first as this enables the primary carer to secure employment based on their derived right of residence.
If you are uncertain as to whether you have acquired the right to seek lawful employment, contact us and our team of expert immigration solicitors will help you to determine if you have acquired such a right.
It is important to note that a further requirement of making an application under the Chen ruling is that the applicant must be a direct relative or legal guardian which the Home Office guidance policy states includes, parents; relationships other than a parental one, may also be considered.
Additionally, the applicant must demonstrate that he/she is the primary carer due to the fact that they have primary or shared responsibility of the EEA national child. This can be evidenced by submitting certain documents such as the EEA national child’s birth certificate and perhaps a custody agreement or court order in cases where the primacy carer has shared responsibility.
The final requirement requires the applicant to demonstrate that their EEA national child would not be able to remain in the UK if the applicant, the child’s primary carer, was required to leave the UK.
Having provided an overview of the requirements of applying for a derivative residence card as the primary carer of an EEA national child, it evident that such a case must be argued well and accurately with the correct necessary documents to ensure a successful outcome. Contact us if you require further guidance on how to make a successful application under the Chen ruling.