Zambrano carers – so near and yet so far

Child removal iStock 000007583512XSmall 146x219Donald Broatch reviews the latest developments in relation to Zambrano carers, including two sets of regulations and a ruling from the Court of Appeal.

Since the decision of the ECJ in Zambrano v Office Nationale de L’enploi (ONEN) [2011] 2 CMLR 46 was promulgated, its consequences for the United Kingdom law, and in particular its immigration and benefit systems, have taken some time to filter through.

The Government and its agent, the United Kingdom Border Agency (“UKBA”), were initially equivocal about the consequences of the decision, and, as a temporary measure, issued so-called “Certificates of Application” to applicants claiming to fall within the Zambrano parameters. These certificates would, as the Government and UKBA put it, “enable” the subject to live and work in the UK, until the Government finally decided upon its course of action, and that applicant’s case was finally resolved.

The Government’s position presaged changes to UK law. However, in the meantime, various public bodies, including housing authorities, had to do their best in a developing and uncertain legal landscape. One consequence of this uncertainty was shown in the case of Pryce v Southwark LBC, where a County Court Judge, hearing an appeal under Section 204 of The Housing Act 1996, held that Zambrano carers, properly so-called, were “subject to immigration control.” This was because they did not have, in their own hands, an enforceable “right to reside”. In consequence, such applicants could not fall within the scope of Regulation 6 of The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (“the Eligibility Regulations”), as they then were.

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The unsuccessful appellant Ms Pryce duly obtained permission to appeal to the Court of Appeal. The appeal was listed for hearing on the 7/8 November 2012. The Treasury Solicitor, on behalf of the Home Office, successfully applied to the Court of Appeal to become an Intervener in the case, and to appear and make submissions. In the event, the Home Office’s written submissions were to the effect that such carers, when properly so identified, did have a directly enforceable EEA right to reside. It followed that such applicants were, under the Eligibility Regulations as they then were, eligible for Part VII assistance.

The Home Office thus argued that the County Court Judge’s decision had been wrong and, likewise, that the housing authority’s submissions, which had been successful before the County Court Judge, and which might have been repeated in the Court of Appeal, were also wrong. The housing authority thus found itself in the difficult position of adopting a different, and, unusually, more restrictive interpretation of an EEA provision affecting individual rights, than that of the Home Office. That being, after all, the specialist Department responsible for ensuring the UK’s compliance with its EEA Treaty obligations, in so far as they concern matters of immigration, nationality and residence etc.

Whilst the original parties in Pryce were considering the impact of the Home Office intervention, the Government, true to its word, but belatedly, published its proposals for significant amendments to each of the two sets of relevant regulations. Such amendments, as luck would have it, were due to come into effect during the proposed hearing of the appeal.

Both the Eligibility Regulations and The Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") have now been amended in accordance with the Government’s proposals, with effect from 8.11.12.

The EEA Regulations are amended by The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012. This, by Schedule 2, paragraph 2 amends Regulation 15(A) of the EEA Regulations, to establish (or to “confirm” in the Government’s view) that a Zambrano carer has a “derivative right of residence.” That amendment covered, in substance and effect, the point upon which the appellant in Pryce was appealing, although the new Regulations do not have retrospective effect. Thus, not only had the Home Office taken the view that Zambrano carers did have a “right to reside,” but it had actually legislated in accordance with that view!

However, apart from current applicants, this change in the law, certainly so far as Part VII housing is concerned, will do Zambrano carers little, if any, good. By a parallel provision coming into effect on the same date (8.11.12) the Government have also amended the Eligibility Regulations. This is by The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012. This simply provides that Zambrano carers are ineligible for Part VII assistance. However, and importantly for the Appellant in Pryce, there is a saving provision for Part VII applicants who had made their applications to a housing authority before 8.11.12.

Thus Zambrano carers, certainly so far as future applications under Part VII are concerned, almost achieved their goal by the amendment of the EEA Regulations, only to have the goal posts moved, indeed, snatched away completely, by the amendment to the Eligibility Regulations.

Thus the potential importance of the appeal in Pryce was much diminished, although it would still have covered cases of such carers who had applied for, and been refused, Part VII assistance before 8.11.12.

The housing authority in Pryce, having taken leading counsel’s advice, and not particularly wishing to find itself opposing the Home Office, and adopting a more restrictive stance, in a matter touching that Department’s specific remit, decided, in the event, not to contest the appeal. It conceded that Ms Pryce was not “subject to immigration control,” and was eligible under Part VII. The Court of Appeal did deliver a form of judgment, into which a statement, agreed between the Appellant and the Home Office, and not disputed by the Authority, was incorporated. This judgment, however, will not be of any great use as binding authority: no party argued the contrary position, and it has no ratio.

Some will consider this to be an unsatisfactory resolution of the appeal. However, the prudent course for housing authorities now to adopt, is to acknowledge that pre-8.11.12 Zambrano carers are not “subject to immigration control,” and are thus eligible for Part VII assistance.

The position in respect of post-8.11.12 applicants, under the two new sets of Regulations is, at least until a challenge is made to the new Eligibility Regulations, clear. They are not eligible, even with their right to reside.

It is worth emphasising is that it will be necessary to establish, in any given case, whether the particular applicant, claiming to be a Zambrano carer is, in fact, entitled to be so treated. Pre and post 8.11.12 applicants are considered separately.

For pre-8.11.12 applicants

A housing authority, before accepting a carer applicant as eligible, will have to be satisfied that if that applicant were not to be not treated as having a right to reside and/or work in the United Kingdom, the consequence would be that he/she will have to leave the United Kingdom. This must be either for immigration reasons, or for financial reasons as a result of not being able to work. Only if that is the situation, and if the UK national child being cared for would, inevitably, have to leave as well, thus bringing about that child’s so-called “constructive deportation,” will Zambrano apply.

On one view, it is a strong test. If there were some basis, short of a right to reside, upon which the carer could remain in the UK, and some basis upon which he/she could gain an income, the application should fail. Likewise, if the particular carer is not the sole carer, or even the sole potential carer, because there is someone else in the UK who could be the child’s carer, such as the other parent, a grandparent, or other relative, so that the consequence will not be the constructive deportation of the UK national child, then the Zambrano criteria are not fulfilled.

For post-8.11.12 applicants

The wording of the added amendment to the EEA Regulations reads as follows:

"(4A) P satisfies the criteria in this paragraph if -

(a) P is the primary carer of a British Citizen (“the relevant British Citizen”);

(b) The relevant British Citizen is residing in the United Kingdom; and

(c) The relevant British Citizen would be unable to reside in the UK or in another EEA State if P were refused a right of residence.”

This provision and its application need to be considered carefully. “Primary carer” is not limited to the carer of a UK national child; the carer of a UK national disabled/vulnerable adult would be included.

The caree must be residing in the UK and not living abroad, even elsewhere in the EEA. Further, the expression: “unable to reside in the UK or in another EEA State” imports a high threshold. It is not sufficient that it would be difficult or inconvenient for the caree to continue to reside in the UK, or in another EEA State. The caree’s situation must be sufficiently serious, so that the mere absence of the carer inevitably brings about a situation where the caree is “unable” to reside, and thus his/her “constructive deportation.” “Unable” in the present context must mean “impossible”.

The “unable to reside” test applies not simply to residence in the UK, but also to another EEA State. Thus, if there was another EEA State in which the carer and the caree could reside lawfully, the test in the new Regulation would not be satisfied.

There is certainly room for a view that the new Regulation is rather over-restrictive, and may not fully comply with the UK’s obligations pursuant to Zambrano. However, relevant UK authorities will have to apply it in post-8.11.12 cases. Housing authorities in assessing Part VII applicants will now not normally, in the light of the new Eligibility Regulations, have to make such assessments.

There will, doubtless, be applicants and advisors who allege that, notwithstanding that an applicant does not fall within the new category in the amended Regulations, he/she is still a Zambrano carer, falling within the scope of the ECJ judgment itself. Authorities cannot, and should not, extend the scope of the Regulation, or recognise any claimed Zambrano entitlement falling outside its scope, until and unless there is guidance from the Appellate Courts, on a case by case basis, enabling them to do so.

The issue may arise in the context of other benefits, because in addition to the amended Eligibility Regulations, which provide that Zambrano carers are not eligible, there are the new Social Security (Habitual Residence) (Amendment) Regulations 2012, which provide that Third Country nationals with a Zambrano right to reside, are not entitled either to Housing Benefit or Council Tax Benefit. It is possible that these exclusions, as well as that from Part VII housing, will cause applicants’ advisors to seek new ways of establishing Zambrano rights, and means of circumventing the restrictions in the three new Regulations. The topic may well prove to be quite litigation generative.

Donald Broatch is a barrister at Five Paper. He can be contacted byThis email address is being protected from spambots. You need JavaScript enabled to view it..

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