Non EU National and right to reside in UK as primary carer of British children

I have a client who has a Pakistani passport, she has been living in the UK since 2004 but has never been granted citizenship in the UK. She was married to a British national but he died in 2013.

She has 3 children who all have British passports. When her husband was alive he refused to sign her paperwork for British citizenship and her application failed.

In her passport she has a “derivative residence card” valid for Jan 2015 - 2020, which was granted (under Zambrano?) as her British children would be forced to leave the UK if she were not allowed to stay. This allows her to work in the UK but makes no mention of claiming benefits.

She has been told to apply for ILR in 2020 when her card expires.

She has never worked in the UK but has been getting child benefit, widowed parent’s allowance, CTC, HB/CTS

However, HMRC has now stopped her child tax credit as they say her right of residence as a primary carer of British citizens only allows her to claim WTC and not CTC

Is anyone able to advise me if this is correct?

My first thoughts would be that she is not entitled to CTC, CB or HB/CTS as her residence has an end date?

Thank you

Unfortunately, HMRC’s decision is correct -  she is not entitled to CTC where she has a derivative right   of residence as a Zambrano carer .
I have a similar case and have found that the Court of appeal ruled that Zambrano carers have no entitlement to mainstream social assistance following the amendment to the HRT in November 2012. This also means no entitlement to CB and HB either.
See judgement   Sanneh & Ors v Secretary of State for Work and Pensions and Others (2015) 

Zambrano carers are only allowed to work and claim WTC .  If they are not working or have no income – member states are under an obligation to pay those in need to support themselves. In the UK ,Section 17 of Children’s Act 1989 meets this obligation.

However , this may change , as I understand that PTA has been granted by the Supreme Court against a decision of the Court of Appeal - R (HC) v SWWP and Others   where it has been challenged whether the amending regulations were in breach of anti – discrimination provisions in EU law .  It was   due to be heard in early January 2017 but it appears   that it is still   pending.

We have a similar case concerning an Albanian national with 2 children, whose only income currently is £73.10 JSA.

AIRE centre informed us that HC(Sanneh) is due for hearing by the Supreme Court in July 17.

Thank you TJi and Ruth_T, very helpful info :)

In respect of a WTC claim HMRC is saying she would need to work 30 hours per week, even though she is a lone parent with children (not 16 hours) because of her immigration status.

I cannot find out if this is correct, do you have any information about this please?

I have also been trying to find the answer but with no avail.  My client was told that she cannot work under the 16 hr rule and therefore , took up 30 hrs work to be entitled to WTC.

I assisted my client to challenge the disentitlement to CTC on grounds that it was discriminatory and that it is stayed pending the outcome of the Supreme Court .

Surprisingly ,  I have just received the HMRC’s response and they have stated   in accordance with Regulation 3 (5)  (b) (ii)  of the Tax Credits (Residence ) Regulations 2003 a person is not treated as being in the U.K where the rights exists under Regulation 15A(1) of the Immigration (EEA ) Regulations but only where a right exists under that regulation because person satisfies Regulation 15A (4A) .

They have stated that both (child and claimant-  underlined in response )  are not treated being present and ordinarily resident in the U.K .  I’m not sure whether this is right or not as I fail to understand how a person can   be ordinarily resident for WTC purposes   but not for CTC and why the child cannot be treated as present and ordinarily resident.  Could this explain why a person is required to do 30 hrs of work and not 16 . Anyone -  correct me if I’m wrong and clarify what   they actually mean.