The rights of Zambrano carers
The Court of Appeal has held that Zambrano carers who are in need and unable to work are not entitled to the same level of social assistance as is required under EU law for EU citizens lawfully in the UK. Christopher Baker, Sam Madge-Wyld and Toby Vanhegan report.
In Zambrano v ONEM (C34/09) [2012] QB 265, the ECJ held that an EU member state could not take measures, against a person who was not an EU citizen but whose dependent children were EU citizens residing in that member state, if the effect of those measures would be to deprive the children of the genuine enjoyment of the substance of their rights of citizenship of the EU under Art 20 of the Treaty on the Functioning of the European Union by being compelled to move out of the EU. Such non-EU citizens (also known as third country nationals or TCNs) have come to be known as “Zambrano carers”.
In Pryce v Southwark LBC [2012] EWCA Civ 1572; [2013] 1 WLR 996, in which the Secretary of State had intervened, on the basis of concessions it was held that a person who had a derivative right as a Zambrano carer would – as the law then stood – be eligible for homelessness assistance under Pt 7 Housing Act 1996.
The day after Pryce was decided, however, the Government amended, in relation to new applicants, the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI 2006/1292) so as to render ineligible (among others) persons whose only right to reside was derived from Art 20 TFEU. Other Regulations were similarly amended in order to disentitle Zambrano carers from housing benefit, job-seekers allowance, income support, employment support allowance, council tax benefit, state pension credit or child tax credit. Further, the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) were amended in order to confer in domestic law a derivative right for Zambrano carers to reside in the UK.
The present cases
The present cases – Sanneh v Secretary of State for Work and Pensions; Birmingham City Council v Merali and others; Scott v Croydon LBC; R (HC) v Secretary of State for Work and Pensions [2015] EWCA Civ 49, February 10, 2015 – were heard together because they all raised issues as to the eligibility of Zambrano carers, including whether the amending Regulations were lawful. In all the cases except Sanneh, the applicants had applied for either homelessness assistance or welfare benefits after the statutory amendments; Ms Sanneh claimed income support before the amendments, but had been unsuccessful and appealed.
In the Birmingham cases, the respondents were four applicants who had remained in the UK for many years after the expiry of their leave to remain and applied as homeless when their accommodation arrangements with partners, family members or friends broke down. On being found to be ineligible by the local housing authority, they were all provided with social services accommodation and assistance under s17 Children Act 1989. On their appeals to the county court under s204 Housing Act 1996 against the authority’s findings of ineligibility, the judge directed the hearing of a preliminary issue as to the rationality of the authority’s conclusion on the facts that the applicants did not fall within the Zambrano principle because they would not be compelled to leave the UK, which he determined in the applicants’ favour; Birmingham appealed. Subsequent to the appeal, one of the applicants had secured from the immigration authorities leave to remain in the UK without any condition restricting her recourse to public funds; she had re-applied as homeless, been found to be eligible and had accordingly been provided with homelessness assistance.
In Scott, the applicant lived in the UK without leave to remain with her child, who was a British national. Croydon found her to be ineligible; her appeal to the county court was unsuccessful and she appealed to the Court of Appeal. In HC, the applicant had no leave to remain and she applied to Oldham for assistance when her relationship with the father of her British children broke down. She was provided with assistance under s17 Children Act 1989 but unsuccessfully brought judicial review proceedings to challenge the lawfulness of the amending Regulations rendering her ineligible for homelessness assistance and welfare benefits; she appealed.
The Court of Appeal decision
(1) EU law conferred on a Zambrano carer a right to reside from the time when the carer ceased to be liable to be removed from the UK, eg on the birth of a child, upon becoming the primary carer of an EU national who would be forced to leave the EU but for the carer’s presence.
(2) In order for the child’s citizenship right under Art 20 TFEU to be effective, member states had to make social assistance available to Zambrano carers, when it was essential to do so, to enable them to support themselves in order to be the carer. The right to such basic support was, however, a derivative right only and was exclusively governed by national law; and accordingly the EU principle of proportionality did not apply.
(3) It was not necessary to show, in addition to destitution, that the Zambrano carer would be forced out of the EU for want of resources; if necessary, an assumption about being forced out would be made; the law looked to the substance, not the form, and practical reality, requiring that the Zambrano carer and the EU child must not be left without the resources essential for them to remain. It was not open to the Court on the material before it to determine whether s17 Children Act 1989 operated satisfactorily on the ground; but if s17 assistance was available it would have the effect of ensuring that the basic needs of the child and the Zambrano carer were both properly looked after.
(4) A Zambrano carer could not claim to be entitled to social benefits under the EU principle of non-discrimination under Art 18 TFEU: the discrimination between Zambrano carers and other benefit claimants, resulting from the amending Regulations, was not direct discrimination on the grounds of nationality but indirect discrimination on other grounds which could be justified; further, a Zambrano carer was not a potential beneficiary of social assistance under the EU legislative scheme for cross-border social benefits so as to enable a claim to be brought under Art 18 TFEU; and EU law did not prohibit reverse discrimination, ie unfavourable treatment by a member state of some of its own nationals. Accordingly, the only protection from discrimination available to Zambrano carers or their children was that derived from Art 14 ECHR, but in order to show a violation of the Convention right it would have to be shown that the legislative policy was manifestly without foundation. This could not be done because: the difference in treatment did not leave the Zambrano carer and EU child destitute as they could have recourse to assistance under s17 Children Act 1989; the carer could apply for long-term leave to remain with an abbreviated period for a condition restricting recourse to public funds; and there were deliberate policy reasons for treating Zambrano carers and their children differently from other TCNs or other EU children, including deterrence whose value was a matter for political judgment.
(5) The Secretary of State had complied with the general public sector equality duty under s149 Equality Act 2010: the amending Regulations had been made to uphold the position that had existed previously; in such circumstances, the impact of the Regulations and the equality duty was limited.
(6) In the Birmingham cases, the authority’s appeals were allowed, save in the one case which had become academic, because the judge had decided whether the applicants were Zambrano carers for the purposes of ECJ jurisprudence whereas the only question should have been whether the applicants were ineligible by virtue of the Regulations.
(7) In Scott, although the ground of appeal challenging the Regulations would for the reasons above be dismissed, there was a further ground challenging whether the correct test for entitlement to social benefits was (as Croydon had decided) the right to reside or (as the appellant contended) habitual residence. The latter ground was stayed, on the application of the Secretary of State and the local authority, pending resolution of other proceedings against the UK Government before the EU and two other appeals before the Supreme Court.
The Court of Appeal refused for a number of reasons to make a reference to the Court of Justice of the European Union.
Christopher Baker and Sam Madge-Wyld of Arden Chambers appeared for Birmingham City Council (in the Court of Appeal only); Toby Vanhegan of Arden Chambers appeared for Ms Scott.
