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Cornerstone Success In London Borough Of Croydon "Zambrano Carers" Appeal

David Lintott of Cornerstone Barristers successfully appeared for the Respondent local authority, the London Borough of Croydon, in the 2nd of four linked appeals dealing with "Zambrano carers". The Court of Appeal dismissed the Appellant's appeal and held that EU law gives a Zambrano carer the right to reside in the UK from the time when it becomes apparent that she qualifies as a Zambrano carer. However it does not give her an entitlement to social assistance on the same basis as an EU citizen lawfully resident here. It is for national law to determine the level of benefits to which she is entitled. The Court did not regard it appropriate to refer any issue to the CJEU for a preliminary ruling. A second ground of appeal relating to the 'right to reside' test for entitlement to social benefits was stayed on application by the parties pending the decision of the Supreme Court in two appeals which are to be heard shortly, namely Mirga and Samin v Westminster City Council [2012] EWCA Civ 1468.


(1) Sanneh v Secretary of State for Work and Pensions Respondent
(2) Scott v London Borough of Croydon
(3) Birmingham City Council v Merali & Ors
(4) R o/a of HC v Secretary of State for Work and Pensions & Ors v Oldham Council [2015] EWCA Civ 49
10th February 2015 Arden, Elias, Burnett LJJ

Upon an application being made under Part 7, Housing Act 1996, the local housing authority must determine whether the applicant is homeless, eligible for assistance, has a priority need and has not become homeless intentionally. At that point they have a duty to secure that accommodation is available for occupation by the applicant unless they refer to another authority (s.193(2), Housing Act 1996).

By s.185(1) HA 1996 a person is not eligible for assistance if he is "a person from abroad who is ineligible for housing assistance". There are two parallel schemes. Section 185 (2) contains the scheme for those "subject to immigration control". Such persons are excluded from eligibility but may "re-qualify" if they meet the criteria specified in Reg.5 of the Eligibility Regulations. Section 185 (3) contains the scheme for those who are "not subject to immigration control". Such persons are eligible, unless removed from eligibility by Regulation 6 of the Eligibility Regulations as amended in relation to Zambrano carers by the 2012 Amendment Regulations.

By Regulation 6, certain persons are to be treated as ineligible. This provides:

"(1) A person who is not subject to immigration control is to be treated as a person from abroad who is ineligible for housing assistance under Part 7 of the 1996 Act if:
(a) subject to paragraph (2) he is not habitually resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland; or
(b) his only right to reside in the United Kingdom—
...
(iii) is a derivative right to reside to which he is entitled under regulation 15A(1) of the EEA Regulations, but only in a case where the right exists under that regulation because the applicant satisfies the criteria in regulation 15A(4A) of those Regulations; or

(iv) is derived from Article 20 of the Treaty on the Functioning of the European Union in a case where the right to reside arises because a British citizen would otherwise be deprived of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen;

If the applicant is dissatisfied with the decision on review, he may appeal to the county court on a point of law (s.204(1), 1996 Act).

Similar regulations acted so as to disentitle "Zambrano carers" to other benefits sought in the linked cases of Sanneh and HC. In Sanneh (a case from prior to 8 November 2012 when the amending regulations came into force) the critical issue was when the Zambrano right arose.

Facts
Ms Scott, a Jamaican national, came to the UK in 1999 on a visit visa. She was subsequently granted leave to remain as a student but overstayed on the expiry of that leave. Ms Scott formed a relationship with a Mr B, a British national (now deceased), and had one child within that relationship. The child is also a British national. Ms Scott and her son left the property in which they had been residing in difficult circumstances, spending the night in the home of a Church Minister and thereafter with various friends and acquaintances.

Ms Scott's solicitors wrote to Croydon to apply for housing under Parts 6 and 7 of the Housing Act 1996. This was refused. While Croydon accepted that Ms Scott had a right to reside in the UK as a Zambrano carer, it held that this rendered her ineligible for housing assistance. Ms Scott's solicitors requested a review of this decision and by a decision of 24 July 2013, Croydon decided on review that, as Ms Scott was a Zambrano carer, she was consequently ineligible for housing assistance. Ms Scott appealed against that decision to the County Court and HHJ Ellis in the Croydon County Court dismissed her appeal, applying the Amendment Regulations and the decision of Supperstone J in HC (the 4th linked appeal in the Court of Appeal). Ms Scott then appealed to the Court of Appeal.

Court of Appeal
The appeal was dismissed on all grounds save that relating to the 'right to reside' test for entitlement to social benefits, which was stayed on application by the parties pending the decision of the Supreme Court in two appeals which are to be heard shortly, namely Mirga and Samin v Westminster City Council [2012] EWCA Civ 1468.

The Court of appeal held that EU law gives a Zambrano carer the right to reside in the UK from the time when it becomes apparent that she qualifies as a Zambrano carer. However it does not give her an entitlement to social assistance on the same basis as an EU citizen lawfully resident here. If the EU citizenship right of the EU citizen child cared for by the Zambrano carer is to be effective, then, member states must make social assistance available to Zambrano carers when it is essential to do so to enable them to support themselves in order to be the carer for the EU citizen children in their care within the EU. This was referred to by the Court as "the basic support test". If this test is met, it cannot be said that their departure (if it occurs) was due to any prohibited national measure or to any refusal to pay social assistance which is tantamount to a prohibited national measure.

The basic support test has three consequences. First, the level of social assistance payable to Zambrano carers is exclusively governed by national law: the member state might choose to pay more than the amount that the Zambrano carer needs to support herself but is not obliged to do so. Second, it does not have to be shown that the Zambrano carer would in fact have to leave the EU. Third, the EU principle of proportionality does not apply because EU law has no competence in the level of social assistance to be paid to the Zambrano carer.

A Zambrano carer cannot derive an entitlement to the same level of social assistance as EU citizens entitled to reside in the member state by virtue of the EU principle of non-discrimination. Only EU citizens can rely on the nationality non-discrimination principle. Furthermore, EU law has no application when a member state treats some people within its jurisdiction less favourably than others (so-called "reverse discrimination"). The only restrictions are those imposed by the national law, which, in the case of the UK, incorporates Article 14 of the Convention. Article 14 is not violated because the UK government has policy reasons for making distinctions between Zambrano carers and others, and the court could not say that those reasons are clearly without foundation. Insofar as there is indirect discrimination, it is objectively justified for the same reasons.

In considering the limits on benefits for Zambrano carers imposed by the Amendment Regulations, the Secretary of State fulfilled the public sector equality duty contained in section 149 of the Equality Act 2010. The Secretary of State's obligation under section 149 is to be measured by the context. In this case, the Court was of the view it was an "as you were" decision. The legislative scheme had to be adjusted because the CJEU had defined Zambrano carers by the very right which would give them greater benefits under the domestic scheme than it was thought they should have. Thus the policy decision was to restore them to their previous position. The PSED permits the Secretary of State to perform an analysis on the basis of that limited exercise.

The amendment regulations were accordingly lawful as they neither (i) involved unlawful discrimination; (ii) breached Articles 24 and 34 of the EU Charter; or (iii) breached the PSED.

It was not regarded as appropriate to refer any issue to the CJEU for a preliminary ruling.

Click here for the judgment.