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Supreme Court rules on the right of Zambrano carers to claim social-security assistance in R (HC) v SSWP [2017] UKSC 73

The Supreme Court dismissed an appeal challenging legislation whereby the appellant was denied homelessness assistance and welfare benefits due to her status as a Zambrano carer. Clara Zang considers the judgment.

What is a Zambrano Carer?

In the case of Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265, a Colombian man lived in Belgium with his wife. He did not have a right to reside, but had three children who acquired Belgian nationality at birth. When he lost his job, he was refused unemployment benefit because he did not have a right to reside. The European court held that the refusal was unlawful, as it would result in the children being deprived of effective enjoyment of their rights as European citizens under Article 20 of the Treaty of the Functioning of the European Union (TFEU).

Thus, a Zambrano carer is a person from a non-EU state, who does not have a right to reside in the EU, but is granted residence in order to enable their EU citizen child to exercise their rights as an EU citizen.

Restriction of Social Assistance

Third country nationals are not, in general, entitled to income-related benefits. However, the ruling in Zambrano meant that a third county national, residing in the UK without a right to reside, would have been granted the Zambrano right to live and work in the UK as the primary carer of a child with British citizenship. As a result, they would have been entitled to housing and homelessness assistance, as well as income-related benefits, child benefits and tax credit, and employment assistance. For example, in Pryce v Southwark LBC [2012] EWCA Civ 1572; [2013] 1 WLR 996; [2013] HLR 10, the court relied on Zambrano to conclude that a third country national was eligible for housing assistance.

In response to Zambrano, various legislative amendments were made in November 2012 to make Zambrano carers ineligible for the above forms of social assistance, to which they would otherwise have been entitled as “habitually resident” in the UK: see the Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587), the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012 (SI 2012/2612), and the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 (SI 2012/2588).

The Present Case

The appellant was a Zambrano carer. She arrived in the UK in 2008 with leave but became an overstayer. In 2010, she married a British national and had two children. Her relationship with him ended in late 2012 and she was granted a right to reside as a Zambrano carer by virtue of her children, who were British citizens. She was provided with social assistance under s.17, Children Act 1989, but was denied homelessness assistance and welfare benefits as a result of the above legislative amendments.

The Court of Appeal dismissed the appeal: see Sanneh v SSWP; R (HC) v SSWP; Scott v Croydon LBC; Birmingham CC v Merali [2015] EWCA Civ 49; [2016] QB 455; [2015] HLR 27, in which Toby Vanhegan and Chris Baker of Arden Chambers appeared on behalf of Ms Scott and Birmingham CC respectively).

The appellant appealed to the Supreme Court. The Supreme Court dismissed the appeal. The following two points are of particular relevance for housing law practitioners:

1.     The Zambrano right is limited to protecting children who are EU citizens from being forced to leave the territory of the EU in order to accompany their parents. It did not extend to the right to claim social assistance. The right to reside is not a right to any particular quality or life or to any particular standard of living.

2.     Lady Hale PSC agreed that the appeal should be dismissed. However, she took a child-focussed approach, taking the view that this was a case about the right of two British children to remain living in their own country and to have the support they needed to enable them to do so.

She held that Zambrano carers and their children do not fall within the EU legislation on access to social assistance. All that Zambrano requires is that the children are not effectively deprived of their rights as European citizens. Section 17 of the Children Act 1989 obliges local authorities to provide a range of services to safeguard and promote the welfare of “children in need”. Section 17 should provide sufficient support as long as the local authorities take into account the correct factors when making their decisions about the level of support to be provided.

Lady Hale set out the suggested factors at [46]: the duty under s.11 of the Children Act 2004 to discharge all functions having regard to the need to safeguard and promote the welfare of children; the duty under s.175, Education Act 2002, to exercise their education functions with a view to safeguarding and promoting the welfare of children; safeguarding is not enough and their welfare must be actively promoted; the fact that these are British children who were born and brought up here and have the right to remain here all their lives (in contrast to asylum-seekers); and, the impact upon the proper development of these children of being denied a level of support equivalent to that of their peers. The other members of the Supreme Court agreed with this part of her judgment at [37].

Lady Hale concluded that s.17 is one way of providing these children with what they need and deserve. The fact that there are other, and in some respects preferable, ways of doing so does not mean that the UK is in breach of its obligations under EU law.

The court also held that the UK were not “implementing Union law” in this case. Therefore, Article 51 of the Charter of Fundamental Rights of the EU (which sets out the civil, political, economic and social rights of EU citizens and residents) did not apply and the appellant could not rely on the EU Charter to extend her entitlement to financial assistance beyond the limits of the Zambrano principle. The court also rejected the argument that the amended legislation led to unjustified discrimination contrary to Article 14 of the ECHR.

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