Administrative Court considers whether interim relief should be provided to a Zambrano carer

Wednesday 10 April 2013

Administrative Court considers whether interim relief should be provided to a Zambrano carer denied any access to mainstream social security benefits pending the outcome of her benefit appeal.

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In a judgment handed down this morning - R(Sanneh) v Secretary of State for Work and Pensions and anor [2013] EWHC 793 (Admin), (Hickinbottom J) the Administrative Court considered a claim for judicial review by a Zambrano carer seeking interim relief pending the resolution of her statutory appeal concerning her eligibility to claim income support, child benefit and child tax credit.

The case concerns a third country national (from Gambia) who contends that she has a derived right to reside, as the primary carer of her dependent daughter who is a British citizen, based on Ruiz Zambrano v Office National de l'Emploi (C-34/09). The Claimant who is a lone parent and unemployed made various applications for mainstream social security benefits, namely income support, child tax credit and child benefit which were refused by the Defendants. The Claimant exercised her right of appeal against those decisions. The judicial review is of the defendants' refusal to make interim payments of income support, child benefit or child tax credit pending the outcome of the statutory appeals.

It was submitted on behalf of the Claimant that the failure of the Defendants to make the interim payments of benefit puts her daughter's rights as an EU citizen to reside in the United Kingdom in jeopardy and that the court has an obligation under EU law to protect those rights in the interim (R v Transport Secretary ex parte Factortame Ltd (No 2) [1991] AC 603. It was further submitted that it was no answer for the Secretary of State to say that the Zambrano principle does not apply because the Claimant via her daughter can access support from the Council under section 17 of the Children Act 1989, as this will mean that realistically neither will be compelled to leave the United Kingdom in the foreseeable future; because that provision is designed to prevent destitution for children in need. It was the Claimant 's case that the availability of section 17 support under the Children Act 1989 should be disregarded, given the availability of mainstream benefits and the fact that the provision of section 17 support is intended to be on a residual, temporary, short-term basis only. From which it follows that the provision of interim mainstream benefits is necessary, in order to protect her ability and that of her daughter to remain in the United Kingdom /European Union.

Dismissing the claim Hickinbottom J held that the claim fell at the first hurdle, because the Claimant could not show on the evidence that the failure to pay her benefits pending the ultimate resolution of her entitlement puts her daughter's rights as an EU citizen to reside in the United Kingdom in jeopardy. The Judge also rejected the submission that the Court is bound to leave out of account section 17 support.

"The Council, as much as the Secretary of State and HMRC, is an organ of the state. I well appreciate that section 17 of the Children Act 1989 was not designed for the long-term accommodation of children and their carers, and that the readily available housing stock to satisfy a local authority's section 17 obligation is not ideally suited to long-term accommodation. But this claim is concerned with a temporary situation (whilst the Claimant's entitlement to benefits is determined), and, whilst the Council may consider it is less than ideal that they have to bear the economic burden of ensuring the Claimant and her child are not destitute and are not placed in a position in which they would be compelled to leave the country, any issue as to which authority should bear that burden is not a matter for this court in this case." (At para [102]).

Hickinbottom J added that he did not find the issue of interim relief under Factortame an easy one to decide and said he would leave the question open to be decided in an appropriate case, i.e. in a case where EU law is engaged, and EU rights are in jeopardy.

The Claimant was represented by Stephen Knafler QC and Desmond Rutledge, instructed by Birmingham Law Centre (Michael Bates), who have been instructed to appeal to the Court of Appeal.

Stephen and Desmond are part of Garden Court Chambers Public and Administrative Law Team

To read the full judgment click here.


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