The notes on this page are for EEA nationals and their family members who were resident in the UK on 31 December 2020.

What is the derivative right to reside?

A ‘derivative right to reside’ exists to protect the rights of children to stay in the UK in certain situations. Both the child and the child’s primary carer have a derivative right to reside for as long as necessary to ensure that the child’s rights are protected. 

If you think you have a derivative right to reside you may need to get specialist support to demonstrate that you have this status.

You and your child may fall into one of the categories below to be covered.

The child is the child/step-child of an EEA worker (or previous EEA worker)

The most common situation, and the most important one when it comes to entitlement to benefits and other public services, is when the child was living in the UK at any time when the child’s birth parent, adoptive parent or step-parent by marriage was a worker in the UK.

The child has the right to enter or remain in the education system and then to complete their studies, including higher education. And for as long as the child is young enough to need the care of a parent or carer, the primary carer has the right to reside in that role.

It does not matter whether:

• The worker parent is still a worker, or even whether they are still in the UK.
• The period when the parent was a worker occurred before the child was school age (although the derivative right to reside in that case would not commence until the child starts school).
• The child’s current primary carer is an EEA national, or whether they personally have ever been a worker.
• The primary carer is the same parent who was originally a worker, or the other parent, or perhaps even another close relative.

The children of self-employed people (and by extension their primary carers) do not have a derivative right to reside. These rights exist only for the children of workers in the job market.

The child is a self-sufficient EEA national

If a child has the right to reside as a self-sufficient person, their primary carer has a derivative right to reside. People in this situation are less likely to be claiming means-tested benefits as self-sufficiency and benefit entitlement are largely mutually exclusive.

A British child's main carer is not from the EEA

Where a British child has a non-EEA national as their primary carer, that primary carer has a derivative right to reside if that is the only way in practice that the British child can avoid being taken out of the EU (i.e. back to the primary carer’s home country).

These primary carers are known as Zambrano carers (after the European Court case that established a right to reside on this basis). Zambrano carers fail the right to reside test for all benefits which have such a test.