Adrian Berry wins Court of Appeal case confirming the direct applicability of EU Zambrano rights

Thursday 8 November 2012

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Adrian Berry has won an important case in the Court of Appeal confirming the direct applicability of EU Zambrano rights in housing, benefits, healthcare and community care cases.

The Court of Appeal yesterday gave judgement in Pryce v London Borough of Southwark and Secretary of State for the Home Department (Intervener), allowing Ms Pryce's appeal and holding that she was and is eligible for homelessness assistance as a beneficiary of rights arising under Article 20 of the Treaty on the Functioning of the European Union (TFEU), as elaborated by the Court of Justice of the European Union in the case of Zambrano v ONEm, C-34/09. This is the first time the Court of Appeal has considered the application of Article 20 TFEU and Zambrano in the social welfare context.

Ms Pryce was unlawfully present under domestic law but the sole carer of her British citizen children. She was successful in establishing that she has an EU right of residence under Article 20 TFEU, following the case of Zambrano. This enabled her to be eligible for homelessness assistance because she was not a person subject to immigration control and was a person with a right of residence. This right was not excluded by the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006.

The judgement benefits all persons who meet the Zambrano criteria who applied for homelessness assistance and/or an allocation of social housing prior to 8 November 2012. It also helps Zambrano beneficiaries establish eligibility for benefits and tax credits, as well as to secure healthcare treatment in hospitals. In addition, Zambrano beneficiaries should not be excluded from social services support, for example under the National Assistance Act 1948 or the Children Act 1989, on immigration grounds because they are not unlawfully present in the UK.

This case is important for confirming the principle that an EU right of residence confers substantive and not merely procedural benefits. Zambrano beneficiaries do not have to apply for or be granted a derivative residence card before being granted social assistance.

Advisors and lawyers will no doubt be aware of regulations that came into force on 8 November 2012 which attempt to limit access to housing and benefits for persons applying on or after that date. Adrian is happy to advise on eligibility under both the new and old provisions.

The transcript of the judgment is not yet available.

Adrian was led by Richard Gordon QC, and instructed by Sasha Rozansky Deighton Pierce Glynn.

Adrian Berry is a member of the Garden Court Immigration, Housing, Community Care and Welfare Benefits Teams.

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