Case Study: Child Benefits

Primary carer of a ‘Chen child’ with a permanent right to reside is entitled to a right to reside for child benefit purposes in order to give ‘useful effect’ to the child’s residence rights

The case of  FE v HMRC (CHB) [2022] UKUT 4 (AAC) is about the right of Chen parents — the primary carers of self-sufficient EU citizen children — to claim benefits, in this case child benefit.

Facts 

The appellant FE is Nigerian. His daughter F is an Irish citizen with spina bifida. FE had the right to reside as a Zambrano carer, but this didn’t entitle him to child benefit: for that, he needed to be a Chen carer. To qualify under the Chen case, he would normally need to have “sufficient resources and comprehensive sickness insurance cover”, which the First-tier Tribunal determined that he did not.

But F had, in December 2009, acquired the right of permanent residence under EU law. That complicated the picture:

The issue for me is whether, F having obtained a right of permanent residence by virtue of having previously been a Chen child, the appellant as her primary carer is required to have sufficient resources and comprehensive sickness insurance cover.

The judge’s conclusion, as set out in the headnote, is that the appellant did qualify as a Chen parent until F turned 18, on 16 January 2020:

He had such a right until the latter date as the primary carer of his daughter F when a minor, in order to give useful effect to the right of permanent residence she enjoyed under art.16 of Directive 2004/38.

As such, he was entitled to claim backdated child benefit up to that date, although not after F turned 18.