New Zambrano case: Good news and bad news for Zambrano carers
Court of Appeal rules that the Zambrano status arises immediately and there is no need to show destitution. However, Zambrano carers have no entitlement to mainstream social assistance following the amendment to the habitual residence test in November 2012.
In Sanneh & Ors v Secretary of State for Work and Pensions and Others  EWCA Civ 49 (Arden, Elias, Burnett LLJ), the Court considered the position of Zambrano carers in need of social assistance. The Court held that the Zambrano status is a positive right which arises as soon as the necessary conditions are satisfied; there is no need to wait until the carer is destitute or threatened with actual removal from the EU. However, the Court went on to rule that Zambrano carers are not entitled to the same level of social assistance as EU citizens lawfully residing in the EU. The Zambrano obligation is limited to providing sufficient support to meet the carer’s basic needs (which includes the need to be able to care for the EU citizen child). The discrimination challenge to the amendment to the habitual residence test which excludes Zambrano carers from mainstream social assistance was rejected by the Court.
When does the Zambrano right arise?
In Zambrano (C-34/09) the CJEU established that a refusal to grant a right of residence to a third country national (‘TCN’) with a dependent minor child in the member state where the child is a national and resides, is prohibited if it has the effect of depriving citizens of the Union “the genuine enjoyment of the substance of the rights” conferred by virtue of their status as citizens of the Union. However, it was not necessary for the CJEU to define when Mr Zambrano’s right to reside arose and it gave no guidance on that point. Arden LJ, who gave the lead judgment, said the issue presents a choice between two dates:
(i) The time when the carer ceases to be liable to be removed i.e. the first date from which the Zambrano carer ceases to be liable to prohibited national measures (‘The First Date’).
(ii) The date when prohibited national measures are taken (or are imminent) (‘The Last Date’).
None of the subsequent EU cases considered the First Date/Last Date point (e.g. Dereci (C-256/11), O v Maahanmuuttovirasto (C-356/11 and C-357/11) and Iida (C-40/11)). The Court of Appeal in Harrison (Jamaica) v SSHD  EWCA Civ 1736 was concerned with a different issue; namely that the Zambrano principle only covers the case where the carer is forced to leave the EU and not the lesser situation where the departure of the carer may adversely affect the quality of life of an EU citizen child who is left behind with another primary carer.
The Appellants argued that the effect of the CJEU’s decision in Zambrano is that it was to be assumed that the Zambrano carer without support would be forced to leave for want of resources. On that basis, the right to reside would arise immediately (‘the First Date’). Moreover, a TCN who has no right to reside in the UK commits a criminal offence under section 24(1)(a) of the Immigration Act 1971. It would be wrong, in principle, if a Zambrano carer had to commit a criminal offence in order to be able to look after the EU citizen child in her care because she has no right to reside until the Last Date. On the other hand, the Secretary of State argued that the rights conferred on Zambrano carers are extremely limited. On his analysis, there is no right to reside as such until the point where the removal of the Zambrano carer from the EU is imminent. In the meantime, the carer’s presence in the country is merely tolerated.
Arden LJ observed that matters of entry and stay for non-EU citizens are matters outside the exclusive competence of the EU. However, the CJEU has held that member states must not take decisions on those matters which would make the rights of EU citizenship ineffective (e.g. Baumbast (C-413/99) and Chen (200/02). Against this background, Arden LJ held that it would make no sense for the Zambrano right to arise only from ‘the Last Date’ (para 74). In a concurring judgment Elias LJ criticised the position taken by the Secretary of State on this issue (paras 166-168):
“I wholly reject this analysis of the nature of the Zambrano right. In my view, it is barely coherent. The logic appears to be that although the State at all times has the right to take action to remove the third country national, in practical terms it is necessarily and always meaningless. At the very same moment as the State takes steps to exercise it, a countervailing right magically springs into being which enables the carer to claim to be immune from the process. Presumably on this analysis if the State then agrees not to take removal action, the need to invoke the Zambrano principle disappears and the carer returns to the status of someone whose presence is simply tolerated but who has no right as such to remain in the country.
I cannot accept that this would be a proper implementation of the EU right. The right lawfully to remain and work in the UK can only sensibly mean that no action can be taken by the State to defeat those rights… At all times whilst the Zambrano conditions are met, the carer has the right not to have action taken to remove her from the country if the effect would be to deprive the child of his or her right, as a citizen of the EU, to remain within the EU.
The Secretary of State’s submission is made all the more bizarre given that someone not lawfully present in the UK is under a duty to leave, and indeed is committing a criminal offence by remaining: see section 24 of the Immigration Act 1971. As I understand the response to this point of Mr Coppel QC, counsel for the Secretary of State, it is that in practice no proceedings are ever instituted against those illegally present, and if they were there would be an immunity from the criminal process. But to be effective the immunity must have the effect that at no time when the carer has been performing her role as a Zambrano carer has she been acting illegally by remaining in the country. The carer’s presence in the circumstances must be lawful, not merely tolerated, and that can only be on the premise that there is at all times a right to stay.”
Consequently, Zambrano carers were entitled to social assistance by virtue of their right to reside until that right had been deliberately excluded by an amendment to the habitual residence test (for both benefits and housing assistance) by SI 2012/2587, SI 2012/2588 and SI 2012/2612 (‘the Amending Regulations’) which came into force from 8 November 2012 (paras 135, 139 and 170). The Upper Tribunal’s decision in Sanneh v SSWP was therefore set aside as wrong in law as Ms Sanneh had been entitled to claim income support when she claimed benefit in June 2011 (para 137).
This leaves the question of what social assistance the Zambrano right gives to carers and their children in the UK post-the Amending Regulations.
The Court ruled that member states must make social assistance available to Zambrano carers when it is essential to do so to enable them to support themselves and the EU citizen child/children in their care within the EU. Arden calls this the ‘basic support test’. However, this is as far as EU law goes.
The Court held that EU law has no competence as to the amount payable to Zambrano carers as this is a matter governed by national law. In broad terms, the Court said that the directives which deal with cross-border social security (including the Citizenship Directive (2004/38), the Long-Term Residence Directive (2003/109) and the Family Reunification Directive (2003/86)) provide an exhaustive statement of the rights to social assistance which a member state has to give to non-nationals. However, Zambrano carers cannot point to any provision within this scheme which gives her a right to social assistance as a matter of EU law. It follows that a member state can, in principle, decide on the level of benefits it grants to Zambrano carers.
In the UK, the payment of adequate social assistance to Zambrano carers is achieved through the availability of section 17 of the Children Act 1989. This is sufficient to meet the UK’s obligations to provide support ‘basic support’ to Zambrano carers. The fact that Zambrano carers do not have a member state of origin to which to return does not justify giving them a right which is better than that of economically inactive EU citizens (under the Citizenship Directive) or TCNs (under the Long-Term Residence Directive).
The Appellant in R (HC) v SSWP sought to challenge the Amending Regulations on the basis that they were in breach of anti-discrimination provisions in EU law. The Court, in effect, said this challenge does not get off the ground as, according to EU case law, TCNs cannot rely on the anti-discrimination provision in Article 18 TFEU (ONAFTS v Ahmed (C-45/12). Nor can EU citizens who are not self-sufficient rely on the non-discrimination provisions in the Citizenship Directive (Dano (C-333/13).
In relation to the arguments based on the Human Rights Act 1998 and the Equality Act 2010 the Court held that the scheme for Zambrano carers in the UK was proportionate and the differential treatment of these carers could not be described as ‘manifestly unreasonable’. The Court accepted the Secretary of State’s justification based on the following factors: (i) the differentiation does not leave the Zambrano carer and the EU citizen child destitute; (ii) a Zambrano carer can apply for long-term leave to remain under Appendix FM to the Immigration Rules; (iii) the policy reduces the incentive for people to come to the UK to claim benefits and encourages immigrants here unlawfully to regularise their stay (paras 98, 115-116).
The Court also rejected submissions based on the EU Charter (para 117), the principle of proportionality (paras 92, 100) and the Equality Act 2010 (para 31, 122).
The Court’s conclusions
The Court of Appeal’s conclusions on the main issues are listed below: –
- The Zambrano right creates an obligation on member states to take steps to ensure that the Zambrano carer and the dependent EU citizen are able to remain in the EU.
- The Zambrano status arises as soon as the necessary conditions are met (‘the First Date’); there is no need to wait until the carer is destitute or forced to leave the EU (‘the Last Date’) (para 25 and 167-169). Hence, prior to the Amendment Regulations, Zambrano carers were entitled to access mainstream benefits (Sanneh) and housing assistance (Pryce).
- Member states are under an obligation to pay Zambrano carers who are in need and unable to work an amount that will enable them to support themselves and their EU citizen child/children within the EU (para 26-27).
- In the UK, section 17 of the Children Act 1989 meets the obligation of providing basic support for Zambrano carers (para 94, 98(iv) and 117).
- Member states are not obliged to provide Zambrano carers with social assistance at the same level as that paid to EU citizens. The levels of social assistance made available to Zambrano carers in the UK post the Amending Regulations is not in breach of any requirement of EU law. Nor is it in breach of the Human Rights Act 1998 or the Equality Act 2010 (para 29-31).
The clarification of when the Zambrano status arises is welcome, as is the Court’s conclusion that EU law does not require an assessment of whether a carer will or will not in fact leave the UK with an EU citizen child if denied access to social assistance. This means that decision makers should find that the Zambrano criteria have been met if, without the social assistance, the Zambrano carer would be unable to meet their basic needs, including the needs arising from their caring responsibilities (para 98(v)).
On the other hand, there is the bad news – the Court’s conclusion that the UK’s obligation under Zambrano can be met by ‘basic support’ in the form of section 17 support. This means British children of Zambrano carers will continue ‘basic support’ provided by local authorities instead of mainstream social assistance. As the judgment does not contain a positive ruling that section 17 support meets the needs of Zambrano carers “on the ground”, the question of the level of support given to Zambrano carers under section 17 may need to be considered in more detail: see R (Mensah) v Salford City Council  EWHC 3537, in which a Zambrano carer is seeking permission to appeal. The discrimination challenge raises complex issues regarding the effectiveness of EU citizenship and this issue is likely to be considered further by the Supreme Court, with the strong possibility of a future reference to the CJEU (see para 172).
The Appellant is seeking permission to appeal in R (HC) v SSWP and Ors and the Secretary of State has applied for permission to appeal in Sanneh v SSWP.