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Supreme Court rejects appeal by Zambrano carer over provision

The Supreme Court has this week rejected a claim that the denial of mainstream welfare and housing provision to a Zambrano carer and her child was unlawful.

The claimant in R (on the application of HC) v Secretary of State for Work and Pensions and others [2017] UKSC 73 had argued that such a denial amounted to unlawful discrimination under article 21 of the EU Charter of Fundamental Rights and Freedoms and/or under article 14 of the European Convention of Human Rights.

The appellant/claimant, Mrs HC, was an Algerian national who had been living in the UK since 2009. She arrived with leave but then over-stayed.

In 2010 she married a British national on whom she depended financially. She had two children by him, in 2011 and 2013. Her children are British nationals.

The relationship ended after domestic violence in late 2012, when Mrs HC sought help from her local authority. Oldham City Council, after initially refusing, agreed to provide Mrs HC and her children with temporary housing and £80.50 per week for subsistence and utilities, under section 17 of the Children Act 1989.

It was common ground before the Supreme Court that Mrs HC was entitled to reside in the UK as the carer of her children, due to the decision of the Court of Justice of the European Union (“CJEU”) in Zambrano v Office nationale de l’emploi (Case C-34/09) [2012] QB 265.

In Zambrano the CJEU held that an EU member state could not take measures in respect of a non-EU citizen who was the primary carer (a “Zambrano carer”) of an EU citizen, where those measures effectively deprived that dependent EU citizen of the genuine enjoyment of his or her rights under EU law.

In response to the Zambrano decision, the UK government introduced regulations which amended legislation to preclude Zambrano carers from claiming various income-related benefits. Mrs HC challenged the legality of the Regulations.

However, this week the Supreme Court unanimously dismissed the appeal. Lord Carnwath gave the lead judgment, with which Lord Clarke, Lord Wilson and Lord Sumption agree. Lady Hale gave a concurring judgment.

Lord Carnwath said the Zambrano right of residence was not a right to any particular quality of life or standard of living. He also rejected counsel for HC’s argument that in EU law, once a right of residence was established, the Zambrano carer was automatically entitled to the same social security assistant as nationals of the host state.

The judge said EU law required no more for the children of a Zambrano carer than the practical support necessary for them to remain in the EU. It was common ground that the limited financial support provided to Mrs HC and her children was sufficient for them to remain. It followed therefore that Mrs HC could not rely on the Charter to establish a right to further financial assistance.

The Supreme Court also ruled that the measures adopted by the UK did not amount to unlawful discrimination under article 14 ECHR. Discrimination on the basis of immigration status was an accepted part of EU and national law and could not give rise to an issue under article 14.

The objectives underlying the regulations introduced by the Government could not be said to fall outside the wide margin of discretion allowed to national governments in the social security context, Lord Carnwath said.

The judge noted that s.17 of the Children Act 1989 was an important aspect of the government’s response to the Zambrano principle.

In her concurring judgment, Lady Hale added that a local authority reviewing the needs of the children for the purposes of section 17 would no doubt consider: (i) the need to promote actively the welfare of the children, when exercising various statutory powers; (ii) the fact that these children were British, with the right to remain here for the rest of their lives; (iii) the impact on the proper development of the children which would follow if they were denied a level of support equivalent to their peers.

In Lady Hale’s view the administration of section 17, unlike the Regulations, could be said to implement EU law by enabling the children to remain in the UK. If the Charter were applicable to the administration of section 17, it might be possible to regard discrimination against the children of Zambrano carers in that context as falling within article 21 of the Charter. In that case, the justifications presently offered on behalf of the Secretary of State would be unimpressive. But section 17 was one way of providing these children with what they needed and deserved. The availability of alternatives, which were in some ways preferable, did not mean that the UK was in breach of EU law.

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