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Interim payments, Zambrano and final determination of benefits claims

RCJ portrait 146x219A High Court judge has handed down the latest Zambrano ruling. Catherine Rowlands analyses the judgment and sets out the further cases to be heard.

The High Court in Birmingham has ruled in R (Sanneh) v Secretary of State for Work & Pensions, Inland Revenue, and Birmingham City Council that the claimant’s claim for interim payments pending the determination of her claim for Income Support “falls at the first hurdle” as she could not show that, if that relief was refused, her child’s right to remain in the UK would be threatened.

Mr Justice Hickinbottom was considering the latest in the ongoing stream of Zambrano­ cases to come before the court. Ms Sanneh is the Gambian mother of a British daughter, Awa. She is an overstayer, but contends that she has the right to reside in Britain as Awa would otherwise be forced to leave the country of her nationality.

Her claims for Income Support and Child Tax Credits have been refused and her appeal against that refusal will be heard by the Court of Appeal before 10 May 2013.

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Hickinbottom J had to deal with her application for judicial review of the decision not to allow her interim payments pending final determination of that claim.  

The claimant contended that

  1. the failure of the defendants to pay the claimant the interim benefits puts her daughter's rights as an EU citizen to reside in the United Kingdom in jeopardy;
  2. the court had not only the power but an obligation under EU law to protect those rights; and
  3. the court should protect those rights by ordering the defendants to make the interim payments from now until the ultimate resolution of the claimant's entitlement to the benefits.

Hickinbottom J rejected the first of these contentions. The claimant accepted that she would not leave the UK due to economic pressure. Whilst she was short of money, she would stay for the relatively short time before the determination of her entitlement to benefits. There was no entitlement under European law to any particular level of benefits.  

The claimant argued that the support provided to the claimant by Birmingham City Council under section 17 of the Children Act should be left out of account. That submission was rejected.

The judge left open the question of whether relief should be granted in a case where the European rights were in jeopardy, ie if it seemed likely that a British child would have to leave the UK with his Zambrano carer if interim relief were refused.

The claimant has indicated an intention to appeal this decision to the Court of Appeal. Birmingham City Council may also be displeased by the outcome, which leaves them bearing the economic burden of supporting the claimant and her child.  

The substantive appeal will have serious implications for local authorities and re-opens the long-standing issue of the division of the responsibility for the support of children in need between local authority and state.  

There are other cases in the pipeline including:

  • Applications for housing benefit by Zambrano carers made before the coming into force of the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 on 8 November 2012;
  • Homelessness applications made by Zambrano carers after 8 November 2012 (bringing into question the validity of the regulations themselves).

Catherine Rowlands is a barrister at Cornerstone Barristers. She can be contacted on 020 7242 4986 or by This email address is being protected from spambots. You need JavaScript enabled to view it..

 

 

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