EU Derived Rights of Residence | Not Automatically Lost if Crime is Committed
What is an EU Derived Right of Residence? | Kangs Immigration Solicitors
A person who does not qualify for a right of residence under the free movement directive may qualify for another right of residence under EU law.
An EU derived right of residence is, essentially, permission from the Home Office to reside in the U K, based on the rights of someone else, if the applicant is within the UK and is:
- the primary carer of someone who has the right to live in the UK;
- the primary carer’s child; or
- the child of a former European Economic Area (EEA) worker and they are in education in the U K.
What is a Derivative Residence Card (DRC)
A DRC helps you prove that you have the right to live and work in the UK.
What are the benefits of having a DRC? | Immigration Law Solicitors
Although having a DRC is not essential, it can assist the holder in various ways such as:
- allowing quicker re-entry into the UK when returning from abroad
- showing employers/authorities that you are permitted to live and work in the United Kingdom
- providing evidence that you qualify for certain benefits
- assisting in opening a bank account
- facilitating obtaining medical treatment
- assisting in obtaining accommodation
Committing a Criminal Offence whilst having a Derivative Right of Residence
Having a criminal record can be a bar to obtaining a right of residence in the United Kingdom and can even lead to deportation.
However, in CS v UK and Marin v Spain the European Court of Justice held that Zambrano-like derived rights of residence (i.e. Right of Residence based on a child who is a citizen of a member state) would not be automatically lost if a crime was committed.
Instead, the court held that each case must be looked at individually and assessed on its own merits as follows:
“..the assessment must therefore take account in particular of
- the personal conduct of the individual concerned,
- the length and legality of his residence on the territory of the Member State concerned,
- the nature and gravity of the offence committed,
- the extent to which the person concerned is currently a danger to society,
- the age of the child at issue and his state of health, as well as his economic and family situation.”
The Court has held that the correct approach when considering such cases is to adopt the normal principles of EU free movement:-
“..in order to determine whether an expulsion measure is proportionate to the legitimate aim pursued, in the present instance protection of the requirements of public policy or public security, account should be taken of the criteria set out in Article 28(1) of Directive 2004/38, namely how long the individual concerned has resided on the territory of the host Member State, his age, his state of health, his family and economic situation, his social and cultural integration into the host Member State and the extent of his links with his country of origin. The degree of gravity of the offence must also be taken into consideration in the context of the principle of proportionality.”
Overall, what the Court has set out is that whilst criminal offending can result in a refusal or withdrawal of a Zambrano-like Right of Residence this can only be done if the normal EU free movement laws are applied.
How Can We Help? | Immigration and Criminal Solicitors
Our Immigration Team can assist you in making an application for a Derivative Right of Residence card.
If you find yourself arrested by the police or asked to attend a voluntary interview we can represent you and ensure that you have the best chance of having the matter disposed of informally with a view to protecting your right of residence.
In addition to this we can also represent you at the First Tier Immigration Tribunal should the Home Office withdraw your Right of Residence.
We have a proven track record of successfully advising and guiding clients through the immigration appeals process.
Who Can I Contact For Help? | Kangs Solicitors
Please feel free to contact our Immigration Team through either of the following who will be happy to speak to you and guide you: