Q&As

Are there any exceptions to the general rule that a Zambrano carer of a British citizen child cannot access mainstream benefits?

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Produced in partnership with Gary McIndoe of Latitude Law
Published on LexisPSL on 09/04/2018

The following Local Government Q&A Produced in partnership with Gary McIndoe of Latitude Law provides comprehensive and up to date legal information covering:

  • Are there any exceptions to the general rule that a Zambrano carer of a British citizen child cannot access mainstream benefits?
  • Emergency support for a child in need

A right of residence as the primary carer of a British citizen child under Gerardo Ruiz Zambrano v Office national de l'emploi is not conferred by the free movement provisions of Directive 2004/38/EC, the Citizens’ Directive, but is instead a right derived from that child's possession of EU citizenship under Article 20 of the Treaty on the Functioning of the European Union. Someone who has such a 'derivative right of residence' is not entitled to all of the benefits which flow from residence arising under the Directive 2004/38/EC, the Citizens’ Directive. For example, those who acquire a derivative right of residence cannot rely on their status as a basis for bringing other family members to the UK under the Directive 2004/38/EC, the Citizens’ Directive and the UK's implementing Regulations (save in the specific case of certain dependants); nor can they acquire permanent residence in the UK.

Social security entitlement could, arguably, have been available to the holder of a derivative right of residence when the Zambrano judgment was originally implemented by government. The simple point to be made was that, if denied such benefits,a foreign national would have been unable to retain residence in the UK, thus jeopardising the residence of their EU-national child. Access to benefits was, however, identified as a public policy problem, and relevant social security, housing and homelessness regulations were amended,

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