The rights of 3rd Country family members of EEA citizens were in the past entirely dependent on the EEA citizen him or herself. If the EEA citizen moved away from the United KIngdom or died or ceased to be a qualified person, the family member would lose any right of residence in the UK. however, the European Court of Justice started to develop a body of case law which recognized that 3rd country national family members of EEA citizens might start to acquire independent rights of residence within the EEA in some circumstances.
In the sae of:
Baumbast  EUECJ C-413/99 (17 September 2002), an EEA citizen had been living and working in the UK but then returned to his own country. In the meantime, his wife and child had effectively settled in the UK and the child was attending an educational course. The mother did not want to leave the UK. the ECJ held that the child had acquired a right to reside in the UK to pursue their education and, in addition, that this right would be ineffective if the child’s mother was not permitted to remain in the UK too care for the child.
These rights have been enshrined in the regulations in the form of “retained rights” (regulation 10) and “derivative rights” (regulation 15 A)
The Immigration (EEA) Regulations 2006 address the retention of rights at regulation 10. In the following situations, the family member will be considered to retain rights of residence despite ceasing to be the family member of a qualified person:
- a) Where the qualified person dies but the family member has resided in the UK for at least one year and is either him or herself employed, self-emploued or self-sufficient or is the family member of such a person (i.e the child or dependent relative)regulation 10 (2)
- b) Where the family member is the child of qualified person who has died or left the UK where the family member has been attending an educational course or the child of the qualified persons spouse or civil partner in the same circumstancesregulation 10 (3)