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Non EU parents of EU children: claim now to protect your benefit rights

The Law Centre’s social security unit is currently working on behalf of ‘Zambrano’ parents who are not allowed to receive Child Benefit or means-tested benefits under UK rules.

As a test case on this issue is due to be heard by the Supreme Court, we would like to encourage other ‘Zambrano’ parents to lodge claims urgently if they are in need of Child Benefit or means-tested benefits.

The application will be refused but this may give them the right to receive back-payments if the Court decides these rules are unlawful.

The person should contact the Law Centre for advice on how to challenge the decision to protect their rights.

We would also encourage advisers to be alert to this type of situation, and to refer their clients to our advice line if appropriate: 028 9024 4401, 9.30am to 1pm, Monday to Friday.

What is a Zambrano parent/carer?

A Zambrano carer is a non-EU person who is allowed to stay as the parent of an EU/British national, because otherwise the child would be deprived of her/his rights through having to leave the country to accompany the parent. UK law expressly excludes 'Zambrano’ carers from means-tested benefits, Child Benefit and social housing.

For example, this could be an Algerian mother who is looking after her primary school age child, who has Irish / British nationality.

Why apply when they will be refused?

Although the initial application will be refused, there is a chance that the law will change in a way that could benefit Zambrano carers. However, in order to benefit fully, the Zambrano parent must first have lodged a claim for these benefits if their family and financial circumstances require it. The applications will be disallowed under the current rules but the parent can appeal the disallowance and wait for the result of a current test case.

The test case will be determined by the Supreme Court and relates to a case (Sanneh v SSWP and HC v SSWP) where the Court of Appeal decided that this exclusion from benefits was unlawful.

If the Supreme Court confirms that the rule is unlawful, only parents with appeals pending will be paid back those benefits from their original claiming date. Others would only be entitled from the date of the Supreme Court decision. It is for this reason that we urge Zambrano parents to come forward now.

Note: The term Zambrano comes from a European Court case (C-34/09 Zambrano v ONEm [2011] ECR NYR) where Columbian parents who would not otherwise have had a right to reside in Belgium were allowed to stay and claim unemployment benefit because their Belgian-born children would be deprived of their rights if they had to leave to accompany their parents.

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