Widening the definition of primary carers – the updated EEA regulations

Immigration lawyers and anyone with an interest in EEA Immigration will be interested to see the widening of the definition of primary carer in the updated EEA regulations, following the case of C-133/15 Chavez-Vilchez and others and the judgment delivered in May 2017. The changes will be welcomed by those with an interest in the right to family life and Immigration case law, and third country nationals concerned about what might happen if their relationship with an EU citizen breaks down, leaving them with responsibility for a child.

EEA Immigration lawyers will be familiar with the 2016 EEA Regulations. Regulation 16 recognises the ‘derived’ rights that are available to some third country nationals. These are rights which are not directly accorded by EU law but without which, the purpose of the EU Treaties and other legislation guaranteeing free movement would be undermined. If the EU citizen would, in reality, not be able to enjoy his or her rights because a third country national does not have equivalent rights, a derived right may exist.

One of the situations in which these derived rights exist is the situation where the third country national concerned is the primary carer of an EEA national child in the UK. The derived right is qualified to the extent that the third country national had to be the sole carer, or else share care equally with someone who was not ‘an exempt person’ – an exempt person being someone with the rights or residence or abode or Indefinite Leave to Remain in the UK (Regulation 16(7)(c)). Essentially this means that if the third country national is sharing the care with an EU citizen or EEA national, they do not benefit from the derived rights of residence in the UK.

Family life is complex. Increased travel, internationally as well as within the EU, means that families are often made up of people of different nationalities, and with different rights. Immigration solicitors in London will probably recall the Chavez-Vilchez case. The Court of Justice of the European Union (CJEU) dealt with a reference from the Netherlands deriving from the facts in a number of cases. All the cases arose when third country nationals, all of them the mothers of minor children with Netherlands nationality, were refused social security benefits because they did not have residence rights in the Netherlands.

There were a number of differences distinguishing the facts of each case, namely the Immigration status of the third country national mothers, the involvement of the father, and whether the EU citizen (the child) had exercised treaty rights. The facts in Chavez-Vilchez itself were different because the child concerned had moved back from Germany to the Netherlands before the mother made the application for social assistance. In most of the other cases, the EU citizen children concerned had lived all their lives in their home EU member state with their third country national mother.

While in principle, the right of entry and residence of third country nationals in an EU member state is a matter for that member state, there are cases, such as these cases, where the circumstances are bound up with the rights of free movement and residence of EU citizens – and derived rights are appropriate to ensure that the EU citizens involved (in the instant cases, the children) can enjoy their rights.

Ultimately, the CJEU held that the third country national mothers in these cases should enjoy derived rights of residence. To refuse this would mean that their EU citizen children might be prevented from staying in the EU, violating their rights. A member state could not rely on the willingness and ability of the EU citizen parent to be the sole carer of the child – although this could be taken into account by a national court. Of primary concern would be what was in the best interests of the child, and the individual circumstances of the case. However, the CJEU said that it was for the non-EU parent to prove that the EU citizen child would be deprived of his or her rights if the third country national was refused residence.

In light of the CJEU’s ruling in Chavez-Vilchez the updated EEA regulations which come into force on 24th July 2018, the definition of primary carer has been expanded to include those sharing equal responsibility for caring for an EU citizen, including if that person is an exempt person. In other words, it will no longer matter if the third country national is sharing care with someone who has rights of residence in the UK.