11 September 2018, by Desmond Rutledge
The Upper Tribunal in Her Majesty’s Revenue and Customs v HEH and Secretary of State for Work and Pensions (TC and CHB):  UKUT 237 (AAC) Judge Ward, 17 July 2018, considered whether the non-discrimination provisions in the Euro-Mediterranean Agreement between the European Communities and the Kingdom of Morocco (the 1996 Agreement’) prevail over domestic legislation to enable a Zambrano carer to establish an entitlement to Child Benefit (ChB) and Child Tax Credit (CTC).
The claimant was Moroccan and worked in the UK. She had a right of residence arising from her status as a Zambrano carer of her child. The DWP made a decision to remove the claimant’s ongoing entitlement to ChB and CTC based on the amendments to the habitual residence test (the 2012 amendments) which removed claimants’ ability to rely on Zambrano rights to claim social security benefits with a right to reside condition. The claimant’s appeal to a First-tier Tribunal was successful and the HMRC appealed.
Judge Ward dismissed HMRC’s appeal for the following reasons:
- As a Zambrano carer has an enforceable EU right to remain in the UK, then as long as the claimant had this right she did not require leave to enter or remain in the UK under s 7(1) of the Immigration Act 1988 (Pryce v LB Southwark  EWCA Civ 1572 considered).
- Consequently, the claimant could not be disentitled as a ‘person subject to immigration control’ (‘PSIC) under section 115 of the Immigration and Asylum Act 1999.
- But this also meant that she could not rely upon provisions which exempt certain groups from the PSIC rule in the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 SI 636. For as a Zambrano carer, the claimant did not fall into the category of a PSIC in the first place. Hence she could not rely on domestic law to establish entitlement to ChB and CTC.
- The claimant could however rely on EU law in the form of the 1996 Agreement to establish an entitlement to ChB and CTC. The CJEU case of El Youssfi (C-276/06) had ruled that a Moroccan national was entitled to benefits in Belgium as long as they came within the scope of article 65 of the 1996 Agreement by being a worker who legally resided in the territory.
- The UK had decided not to make more generous support available to Zambrano carers and this was an exercise of choice under national law (R(HC) v SSWP  UKSC 73).
- As the claimant had been disentitled to ChB and CTC by the 2012 amendments, her rights under Art.65 of the 1996 Agreement would prevail over this inconsistent domestic law.