Advising European family members with preserved rights
This page covers the whole of the UK
Contents:
Who does this page apply to?
EEA family members are people in the UK who accompany an EEA national (their sponsor) and whose rights to reside are through those of their sponsor. This page looks at problems faced by EEA family members establishing their status and what happens to their rights when their relationship with their sponsor ends (e.g. death, separation/divorce, etc.) or their sponsor’s rights end (e.g. stops being a worker, moves out of the UK).
The law about the rights of EEA family members to live, work and claim access to housing, benefits and other services changed on 1 January 2021 when the Brexit transition period ended. See the equivalent new arrivals page for further details about who this page applies to and how these rights determine eligibility for housing and benefits.
What happens when the sponsor leaves the UK or dies?
Where the sponsor leaves the UK generally his/her family members will lose the right to reside unless they are an EEA national and can establish that they have a right to reside independently as a worker, self-sufficient person, self-employed, student, person with permanent right to reside, etc. The exception to this is where the children may have rights (see below).
Where the sponsor dies, what happens to family members depends on the circumstances of the death:
- there may be rights to reside for children and for a parent caring for them (see below)
- a person who is a non-EEA national or their family member has a retained right of residence if their sponsor was a qualified person or permanent resident and they were residing in the UK for at least one year before their sponsor’s death
- a family member has a right of permanent residence if their sponsor was an EEA worker or self-employed person and they had been living in the UK for at least two years for before their sponsor died, or their sponsor died as a result of an accident at work or an occupational disease.
In the second case (non-EEA national with a retained right), the EEA regulations say that the family member must be a worker, a self-employed person or self-sufficient person (or would be if they were an EEA national). However, the EU directive the regulations implement does not include this rule. If the decision maker refuses housing or benefits for that reason seek specialist advice.
Relevant law
The Immigration (European Economic Area) Regulations 2016, reg. 10(2),(6), reg. 15(1)(e)
European Parliament and Council Directive 2004/38/EC, art. 12
What happens when a relationship breaks down?
If a spouse/civil partner stops living with their sponsor their rights are unaffected while their legal relationship continues, i.e. while they stay married or as civil partners.
A former spouse/civil partner retains their family member status following divorce/dissolution if:
- s/he is not an EEA national but if they were, s/he would be a worker, a self-employed person or self-sufficient person (or jobseeker (Gauswami case - see below)) and
- his/her sponsor was exercising one of their EEA rights (i.e. as a ‘qualified person’ or permanent resident) at least until the termination proceedings began (Baigazieva case - see below) and either:
- the marriage lasted for at least three years, and the parties had lived in the UK for at least one year during its duration, or
- there is at least one child for whom a court order requires residence or contact to take place within the UK, or
- the former family member’s residence in the UK should be allowed to continue due to particularly difficult circumstances such as domestic abuse.
The EEA regulations say that the family member must be a worker, a self-employed person or self-sufficient person (or would be if they were an EEA national). However, the EU directive the regulations implement does not include this rule. If the decision maker refuses housing or benefits for that reason seek specialist advice.
Relevant law
The Immigration (European Economic Area) Regulations 2016, reg. 10(1),(5)
European Parliament and Council Directive 2004/38/EC, art. 13
Gauswami v SSHD [2018] UKUT 275 (IAC)
Baigazieva v SSHD [2018] EWCA Civ 1088
There have been several successful legal challenges in recent years concerning former partners who have lost their family member status when their relationship has ended due to abuse. In all these the appellants have argued that they are entitled to the same treatment as other non-EEA nationals and should be considered for leave in line with the immigration rules on domestic abuse. Contact the AIRE centre if you have similar cases.
A family member who arrived on an EUSS family permit and who has separated due to domestic abuse may be able to get universal credit or housing benefit even though it is disregarded as a right to reside: GA v SSWP (UC) [2024] UKUT 380 (AAC).
In most cases, if a family member’s relationship to their sponsor is as an extended family member such as a partner (other than a spouse/civil partner) or as a dependent adult, then their right to reside usually ends when they stop living with their sponsor.
However, a person can be ‘dependent’ for reasons other than being part of the same household. It can also arise because that person is financially dependent on their sponsor or depend on them for care and support even if their sponsor lives elsewhere.
The point in time for determining whether a person is ‘dependent’ is when they applied to join their sponsor in the UK (Ali case at [99], see below). Once a person’s family member status (as a dependent adult) has been established it continues in place even if they start work or get married (Ali at [100]), but it may be lost if they cease to be dependent for other reasons (see example below).
Relevant law
R (Ali) v Secretary of State for the Home Department [2024] EWCA Civ 1546
A 19-year-old girl who is pregnant presents as homeless. She arrived with her parents before 1 January 2021, and they are both working in the UK and are EEA nationals. She is not economically active or studying, but has the same rights as her parents, and so is eligible as a child, aged under 21, of EEA workers. Her disabled sister, however, who is 22 and has also been thrown out, and is also not economically active or studying, is not eligible. She does not count as an EEA worker’s child, because she is not aged under 21. When she was dependent on her parents, she had family rights as a dependant. Now she no longer gets her family’s support, she is no longer a dependant.
Do children and their parent/main carer have any rights?
A child has right to reside if:
- they are the child/grandchild in education of a qualified person (or of their spouse/civil partner) who has died or has left the UK, or
- they are an EEA national aged under 18 who is a self-sufficient person (NB. a child who is supported by their non-EEA national parent’s earnings is self-sufficient), or
- they are the child in education either of whose parents are or have at some time been, an EEA worker.
Sponsor dies or leaves the UK
The right to reside of a child/grandchild in education is a retained right of residence, which also results in a retained right for the parent who has actual custody. The EEA regulations say the child must have been in education immediately before their sponsor died or left the UK. However, the EU directive the regulations implement does not include this rule. If the decision maker refuses housing or benefits for that reason, seek specialist advice.
Relevant law
The Immigration (European Economic Area) Regulations 2016, reg. 10(2),(3)
European Parliament and Council Directive 2004/38/EC, art. 12(3)
Self-sufficient EEA child
A self-sufficient child has a right to reside in the same way as any other self-sufficient EEA national. A child who is supported by their non-EEA national parent’s earnings is self-sufficient. If the child’s primary carer has no other right to reside of their own (e.g. if they are a non-EEA national) and the child would be unable to remain in the UK if they left, then they acquire a derivative right to reside (known as a ‘Chen right’).
Relevant law
The Immigration (European Economic Area) Regulations 2016, reg. 6(1), reg. 14(1), reg. 16(2)
Chen and Zhu v SSHD [2004] EUECJ C-200/2
EEA worker’s child in education
A child of an EEA worker who is in education has a derivative right to reside, as does their primary carer. This is known as an ‘Ibrahim or Teixeira right’ after the cases that established it and it is now included in the EEA regulations. There is no requirement that the child was in education at the time when their EEA national parent was in work. The child’s primary carer is usually their parent, but they could be a legal guardian or another direct relative such as a grandparent
Relevant law
The Immigration (European Economic Area) Regulations 2016, reg. 16(3)-(4)
LB of Harrow v Ibrahim and SSHD [2009] EUECJ C-310/8
Teixeira v LB of Lambeth and SSHD [2009] EUECJ C-480/08
The legislation says that a person cannot have a derivative right if they already have another EEA right to reside. However, this does not apply to an EEA jobseeker: Sandwell MBC v KK [2022] UKUT 123 (AAC).
A person with pre-settled status based on a derivative right to reside who applied for a residence card during the grace period (1 January 2021 to 30 June 2021) may have been issued with an EUSS family permit instead of an EEA family permit as proof of their right to reside (no new EEA family permits were issued after 31 December 2020).
