EUN05 - Primary Carers of EEA minor children ('Chen' cases)

This is internal guidance for use by entry clearance staff on the handling of applications made outside the United Kingdom (UK). It is a live document under constant review and is for information only.

EUN5.1 Can an EEA national minor child be considered a qualified person?

The ECJ ruled in the case of Chen that an EEA national child who held sickness insurance would have a right to reside in the UK (as a self-sufficient person) with his primary carer, provided that the primary carer had sufficient resources to ensure that the child did not become a burden on public funds.

When assessing whether the EEA national child has a right of residence as a self-sufficient person, the ECO should take account of the primary carer(s) who will be residing in the UK with the child. For instance, if the child will be living in the UK with two parents the ECO should be satisfied that there are sufficient resources available for the child and both parents. The ECO should be satisfied that the funds are sufficient to ensure that the child and primary carer(s) will not become a burden on public funds during the period of residence in the UK. There may be cases where the minor child and primary carer are supported by a relative outside the UK (as in the case of Chen).

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EUN5.2 Is the primary carer or dependant of a primary carer of an EEA national minor child considered a 'family member' for the purposes of the EEA Regulations?

No.  The Chen ruling did not say that the EEA child's parent would have a right to reside as a 'family member', as defined in the EEA Regulations, because a parent cannot be financially dependent on a child. The 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 the rights under 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 derivative right attract public policy protection against entry to the United Kingdom.

Regulation 15A sets out the conditions which must be satisfied in order for a person to have a derivative right of residence.

A person who meets the criteria for a derivative right of residence can qualify for a right of admission to the UK under amended regulation 11(4) with reference to regulation 11(5) and a right to a family permit under regulation 12.

Paragraph 257C of the Immigration Rules which previously contained provision for a Chen parent to apply for leave to enter or remain is now obsolete and will be deleted in due course.

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EUN5.3 What are the requirements for a derivative right of residence as the primary carer or dependant of a primary carer of an EEA national self-sufficient child?

A primary carer of an EEA national child will qualify for a derivative right of residence under regulation 15A(24) where they satisfy the conditions set out in that regulation.  The conditions are that:

a) the applicant 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 UK as a self-sufficient person: and
    iii) would be unable to remain in the UK if the primary carer were required to leave the UK

Regulation 15A(7) confirms the definition of a primary carer for the purpose of regulation 15A(2).  The definition requires that the applicant is:

a) a direct member or legal guardian of the person from whom they claim a derivative right, and
b) is the person who
    i) 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 an exempt person.

Regulation 15A(6)(c) defines an 'exempt person' as a person who:

 i) who has a right to reside in the United Kingdom as a result of any other provision of these Regulations;
 ii) who has a right of abode in the United Kingdom by virtue of section 2 of the 1971 Act;
 iii) to whom section 8 of the 1971 Act, or any order made under subsection (2) of that provision, applies; or
 iv) who has indefinite leave to enter or remain in the United Kingdom.

Where a person shares responsibility equally with an exempt person, then the person claiming a derived right of residence would not meet the definition of a primary carer as set out in 15A(7).

Regulation 15A(8) confirms that financial support alone will not bring a person within the definition of primary carer for the purposes of the Regulations.  Those solely providing financial assistance who have no day to day caring responsibilities do not benefit from the provision.

A dependant of a primary carer of an EEA national child will qualify for a derivative right of residence under regulation 15A(5) where they satisfy the conditions set out in that regulation.  The conditions are that:

a) the dependant is under the age of 18;

b) the dependant's primary carer is entitled to a derivative right to reside in the United Kingdom by virtue of paragraph 15A(2)

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

d) requiring the dependant to leave the United Kingdom would prevent their primary carer from residing in the United Kingdom.

If the ECO requires advice on a case involving the primary carers and / or relatives of EEA national minor children the ECO should contact ECCCAT.

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EUN5.4 Right to a family permit?

A person who has a right of admission by virtue of regulation 11(5) can apply for a family permit to facilitate their admission to the UK.  A person will qualify for an EEA family permit where they can demonstrate they meet the conditions in regulation 15A and regulation 11(5).

Where sufficient evidence has been submitted to demonstrate that the applicant has a right of admission to the UK, and where the person is not precluded from entering the UK on non-conducive grounds under regulation 21A(3), then they should be issued with an EEA family permit.

Where an applicant has failed to submit sufficient evidence to demonstrate that they have a right of admission under regulation 11(5), the application should be refused.

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EUN5.5 Refusal wordings for non-EEA relatives

Not the primary carer or relative of EEA national child:

'... but I  am not satisfied that you are the primary carer, or the dependant of a primary carer, of an EEA national under the age of 18 who has a right of residence in the United Kingdom under the 2006 EEA Regulations as a self-sufficient person.'

Not living with EEA national or not seeking entry to live with EEA national:

'... but I am not satisfied that you are living with your (EEA national child, primary carer (as appropriate) or that you are seeking entry to the United Kingdom in order to live with your (EEA national child, primary carer (as appropriate).'

Dependent of primary carer not under 18

'... but I am not satisfied that you are under the age of 18.'

EEA Child does not hold sufficient resources/Comprehensive Sickness Insurance

'... but I am not satisfied that the EEA national child holds (sufficient resources to prevent themselves and their primary carer(s) from becoming an unreasonable burden on the social assistance system of the United Kingdom, comprehensive sickness insurance for themselves and their primary carer(s).'

EUN5.6 Do primary carers or dependents of primary carers of EEA national self-sufficient children have full rights of appeal?

A person who claims to have a derivative right of residence  under 15A(2) as the primary carer of a self-sufficient EEA national child will have a right of appeal under regulation 26(3A) where they have submitted a valid national identity card issued by an EEA State or a passport, and either:

a) an EEA family permit; or
b) proof that they are a direct relative or guardian of an EEA national who is under the age of 18;

A person claiming a right of entry as the dependant of a primary carer of a self-sufficient EEA national child will have a right of appeal where they have submitted a valid national identity card issued by an EEA State or a passport, and either:

a) an EEA family permit; or
iv) proof that they are under the age of 18 and are a dependant of a primary carer of a self-sufficient EEA national child.

In line with regulation 27(1)(c), a person may not appeal against a decision to refuse him or her an EEA family permit while they are in the United Kingdom.

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