Permission granted to a Zambrano carer in an income support appeal against the Upper Tribunal

Thursday 19 December 2013

On 18 December 2013, Pitchford LJ granted Ms Sanneh (a Zambrano carer) permission to appeal against Upper Tribunal Judge Jacobs' decision that she was not entitled to income support based on a claim made in June 2011 (click here for transcript of the Upper Tribunal's decision Secretary of State for Work and Pensions v JS [2013] UKUT 490 (AAC)).

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It was common ground between the parties that if Ms Sanneh (who is a Gambian national) could establish a Zambrano right to reside in the UK by virtue of her position as a primary carer of a British/EU citizen child, then section 7(1) of the Immigration Act 1988 (that a person does not require leave to enter or remain in the UK if she is entitled to do so by virtue of an enforceable EU right) would apply to Ms Sanneh.Pitchford LJ said that the Zambrano (Case C-34/09) decision itself, and the Court of Justice of the European Union (CJEU) and domestic decisions that followed, made it plain that it is the practicalities of the situation which the domestic courts should look to when deciding whether an EU child would be able to exercise his/her right as a citizen of the Union. In Harrison (Jamaica) v Secretary of State for the Home Department and anor [2012] EWCA Civ 1736, the practical effect of the decision to deport the non-EU national was to leave the child in the UK in the care of its parent, who had leave to remain. The question that arose in Ms Sanneh's case, however, was whether the decision-maker had to wait until the non-EU carer (Ms Sanneh) was driven, by her destitution, to the point where she had no choice but to leave the UK, before she had an enforceable EU right under section 7 of the IA 1988. Permission was granted to consider whether this was indeed the effect of the ruling in Zambrano.

Note: Ms Sanneh withdrew her appeal against Hickinbottom J's decision ([2013] EWHC 793 (Admin)) to dismiss a claim for judicial review of a refusal to make interim payments of income support dated 29 November 2012, i.e. after the coming into force of the 2012 Regulations (SI 2012 No 2587) amending the habitual residence test so as to exclude Zambrano carers from welfare benefits, given the unsuccessful challenge to those Regulations in R (HC) v SSWP and others [2013] EWHC 3874 (Admin).

Ms Sanneh was represented by Stephen Knafler QC and Desmond Rutledge, who were instructed by Coventry Law Centre (Michael Bates).

Stephen Knafler QC is a member of the Garden Court Immigration and the Welfare Benefits Teams. Desmond Rutledge is a member of the Garden Court Welfare Benefits Team.

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