Court of Appeal rules that Zambrano carers are not entitled to mainstream welfare benefits after 8 November 2012

Tuesday 10 February 2015

In a judgment handed down this morning, the Court of Appeal holds that the right to reside under Zambrano (C-34/09) arises on the date on which the Zambrano conditions are met (‘the First Date’). There is no need to wait until the point is reached where the Zambrano carer’s removal from the EU is imminent (‘the Late Date’).

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Consequently, Zambrano carers like Ms Sanneh were entitled to mainstream welfare benefits by virtue of their right to reside until that right was deliberately excluded by the Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587) which came into force on 8 November 2012.

Ms Sanneh had claimed income support in June 2011 (with the help of Birmingham Law Centre), arguing that she had an enforceable right to reside under Zambrano after separating from the father of her British child, she became the primary carer of the child. Her claim for benefit was refused but a First-tier Tribunal allowed her appeal, reasoning that without income support, Ms Sanneh’s continued presence in the UK was not viable and she would have to leave the UK and take her daughter with her. The Upper Tribunal, however, allowed the Secretary of State’s appeal as it took the view that Ms Sanneh only had the right to reside at the ‘Last Date’ and this had not been reached at the time the claim had been made. Following the Court of Appeal’s ruling that the right arises on the ‘First Date’, the Upper Tribunal’s decision was set aside as wrong in law.

The Court of Appeal went on to rule on the position of Zambrano carers post-8 November 2014 and the discrimination challenge to the amendment to the habitual residence test (for both welfare benefits and housing assistance) brought by the appellant in R(HC) v SSWP. The Court’s conclusions in summary are that:

(i)         Member states are under an obligation to pay Zambrano carers who are in need and unable to work an amount that is sufficient to enable them to support themselves and their EU citizen child/children within the EU. In the UK, section 17 of the Children Act 1989 fulfils that obligation (paras 26-27).

(ii)        Zambrano carers are not entitled to social assistance paid at the same level as that paid to EU citizens lawfully here. The levels of social assistance available to Zambrano carers in the UK, following the amendment to the habitual residence test, is not in breach of any requirement of EU law. Nor is it in breach of the Human Rights Act 1998 or the Equality Act 2010 (para 29-31).

The Secretary of State has applied for permission to appeal in Sanneh v SSWP and the Appellant is seeking permission to appeal in R (HC) v SSWP and Ors.

The transcript of the judgment in Sanneh & Ors v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49 is available via Bailli. See the Free Movement blog for further commentary.

Ms Sanneh was represented by Stephen Knafler QC, Desmond Rutledge and Ali Bandegani, instructed by Michael Bates of Coventry Law Centre.

Stephen Knafler QC is a member of Garden Court Chambers’ Public and Administrative Law Team and the Welfare Benefits Team.

Desmond Rutledge is a member of Garden Court Chambers’ Welfare Benefits Team.

Ali Bandegani is a member of Garden Court Chambers’ Immigration Team.

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