Zambrano carers and their eligibility - a provisional solution

Children portrait 146x219The ECJ decision in Zambrano is significant in how it impacts upon applications under Part VII of the Housing Act 1996. Donald Broatch sets out the approach authorities should take.

The decision of the European Court of Justice in the case of Zambrano v Office Nationale de l’Emploi (ONEM) [2011] 2 CMLR 46 has led to a flurry of applications to local housing authorities under Part VII of the Housing Act 1996, from Applicants who had hitherto been considered ineligible. The response to that decision by the Government and the United Kingdom Border Agency (UKBA) has not made the position for authorities as clear as it might have done.

Zambrano concerned a Colombian National couple living in Belgium. Two of their children had been born in Belgium and were thus of Belgian nationality. The couple were not given a right to reside in Belgium. Mr. Zambrano lost his employment because of intervention by the Belgian State as he did not have a work permit. An application was made for unemployment benefit, but this was refused on the basis that he was not entitled to work in Belgium. The case was referred by the Belgian Courts to the ECJ.

The Court ruled that Article 20 of the Treaty on the Functioning of the European Union (TFEU) has the consequence that every person holding the nationality of a Member State is also a citizen of the Union; this, of course, includes children. They enjoy all the rights provided for in the Treaties. The Appellants’ children could not enjoy their rights as Belgian Nationals and EEA citizens, by reason of their age, without having their parents, or principal carer, residing with them in that State. If the parents were not permitted to live and work in the Member State, there was a serious risk that the children would have to leave the Member State, and the EEA itself, and live elsewhere with them. This is the so-called “Constructive Deportation”.

The Court ruled that the Belgian State was obliged to allow the parents to reside within its territory so as to enable the children to exercise their EEA rights. Further, in order to enable the family to obtain their subsistence, the parents should be allowed to work within its territory.

The decision is concerned with the residence, and facility to work within a Member State. It applies only to carers who are “third country” (i.e. non-EEA Nationals) of children who have the nationality of an EEA Member State; these can be referred to as “Zambrano carers”.

In its concluding summary at para 45 the ECJ states:“... Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen”.

It is important to note that the judgment does not grant a Zambrano carer a “right” to reside. Rather, it places an obligation on the Member State to grant such a right. The judgment says nothing about entitlement to benefit: still less entitlement to social housing within a Member State.

A topic of importance for housing and local government lawyers in the UK is the impact of this case upon applications under Part VII of the Housing Act 1996 (“the Act.”)

The legal framework

Section 185 of the Act and the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (“the Eligibility Regulations”) deal with eligibility for Part VII purposes. Regulation 6 states that an applicant who is not subject to immigration control in the UK, and has a right to reside, is eligible, provided he/she is also habitually resident.

Zambrano requires a consideration of Sec 2(1) of the European Communities Act 1972, whereby rights derived from the EEA Treaties are of direct effect. By Sec 7 of the Immigration Act 1988 a person with an “enforceable EU right” to reside, is not subject to immigration control.

The current problem

Representatives of applicants for Part VII housing have seized upon the Zambrano judgment, and claim that it creates a “right to reside” within the scope of Regulation 6 of the Eligibility Regulations. Their argument runs thus:

  1. The ECJ judgment creates a “right” in the hands of a Zambrano carer, quite apart from any “rights” vested in the child.
  2. Such a right falls within the scope of Section 2(1) of the European Communities Act 1972, and is thus an “enforceable EU right” to be given effect in the UK under that provision.
  3. Such an enforceable EU right means that Zambrano carers are not “subject to immigration control” by reason of Section 7 of the Immigration Act 1988.
  4. It has the further consequence, that such carers have a “right to reside” in the United Kingdom for the purposes of Regulation 6 Eligibility Regulations; thus they are eligible for Part VII assistance.

The counter-argument

The error in this argument is that neither the ECJ decision, nor TFEU itself, creates or recognises any “right” in the hands of the carer. Rather, such right as exists vests in the child, with a counterpart obligation upon the Member State. The consequence is that such carers do not have an enforceable EU right. Rather, they remain “subject to immigration control” in the UK: an approach entirely consistent with the “default” categorisation of that status by the Court of Appeal in Ismail v Barnett LBC [2006] 1WLR 2771.

The UK Government’s position

The position of the Government and UKBA is shown the latter’s Press Release of 21 September 2011, its Policy Implementation Notice of 16 September 2011, and in a Ministerial answer given in the House of Lords on 6 February 2012 by a Minister of State at the Home Office Lord Henley. Zambrano carers will be issued with a “Certificate of Application” by UKBA, provided that they can demonstrate that they fall within the scope of the judgment. Such a certificate will “enable” the carer to work and reside in the United Kingdom pending the establishment of the final Home Office policy. All three pronouncements use the word “enable.”

“Enablement” is the language of administrative decision or concession, rather than the language of recognition of a pre-existing right. This is in accordance with the above interpretation of the ECJ judgment in Zambrano.

Pryce

The point was tested in an eligibility appeal under Section 204 of the Act in Pryce v Southwark LBC (2 May 2012) where Her Honour Judge Faber at the Central London County Court upheld the authority’s argument that a Zambrano carer remains subject to immigration control. She concluded that proper interpretation of the ECJ judgment shows that no “right” vested in the carer; rather the rights were the child’s, and the obligation was the Member State’s. Zambrano does not, and was not intended to, abrogate a Member State’s requirements as to granting permission to reside to third country nationals.

The Government’s practice in “enabling” such carers to live and work in the UK, is thus in accordance with its obligation under the Treaty, as interpreted by the ECJ. That obligation can be performed without the existence of any enforceable EU right vesting on the carer. Accordingly, the authority’s decision that the carer is ineligible for Part VII accommodation was correct.

Practical considerations

The Appellant in Pryce is seeking permission to appeal to the Court of Appeal. The answer given by the County Court must be regarded as provisional.

Authorities which are faced with applications by Zambrano carers, should refuse them citing Pryce and the reasons given in that judgment. In the event of authorities being faced with Section 204 appeals from Zambrano carers, applications should be made to stay such appeals pending the Court of Appeal or other final decision in Pryce. At least two other such appeals have already been stayed.

This situation may give rise to applications for accommodation pending appeal, or for the continuation of temporary accommodation under Section 204(4). Such applications have to be addressed in accordance with the guidance in R v Camden LBC ex parte Mohammed (1997) 30 HLR 315 as adapted for appeals by Francis v Kensington and Chelsea Royal London Borough Council [2003] HLR 715. Applicants aggrieved by a refusal of such interim accommodation should be referred to their remedy under Section 204A.

There is a supplementary issue which arises. Some Part VII applicants may not have obtained, or even applied for, Certificates of Application, and aver that they are eligible with or without such certificates. According to Pryce the certificate makes no difference: they are ineligible in either case! However, authorities might think it prudent to advise applicants to apply for these certificates, as they provide a starting point for applicants to establish, on the facts of their individual cases, that they do actually fall with the scope of Zambrano. This may become relevant in the event of a change in the Regulations.

The Government have left open the possibility of a change in the Regulations to address Zambrano carers. However, the present administration may well view a wide extension of the right to Part VII housing as an unwelcome development, and hence be content to let the matter be resolved in the courts. Authorities should proceed on the basis that there may not be any relevant legislative change in the immediate future.

Donald Broatch is a barrister at Five Paper; he appeared as Counsel for the Authority in Pryce. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..