Supreme Court rejects a right to non-contributory benefits for Zambrano carers

In R (HC) v Secretary of State for Work and Pensions [2017] UKSC 73 the Supreme Court decided that Zambrano carers are not eligible for non-contributory benefits which have a “right to reside” test. The benefits affected by the decision are income support, child benefit, child tax credits, and housing and homelessness assistance. The decision, while no doubt correct in law, leaves behind a broken system. The questions for the court Zambrano carers are non-EEA nationals who moved to the UK to join an EEA-national partner, subsequently separated, but still have care responsibilities for their British citizen children. Zambrano carers have a right to reside in the UK because otherwise their children would be forced…

17th November 2017 By Paul Erdunast

New CJEU case extends Zambrano rights of residence, emphasises best interests of children

In a new case, Chavez-Vilchez and Others v Netherlands C-133/15, the Court of Justice of the European Union has significantly extended Zambrano rights beyond those so far recognised by the Home Office and UK courts. The case offers far better guidance than was available in previous cases and emphasises that the impact on children is a primary consideration. Background The case involved seven mothers who had applied to the Dutch authorities for residence on the basis of being the primary carers of young Dutch children. They had all been refused residency because it was said that the fathers of the children could care for them, and therefore the children would not…

16th May 2017 By Colin Yeo

EU derived rights of residence not automatically lost if crime is committed

In two linked cases, CS v UK C-304/14 and Marin v Spain C-165/14, the Court of Justice of the European Union has ruled that Zambran0-like derived rights of residence under EU law are not automatically lost if a crime is committed. Instead, each case must be assessed on its merits and a judgment reached applying normal principles of EU law. Case of CS The first of the cases has proven particularly controversial as the claimant has been named in Parliament as the daughter in law of Abu Hamza, notorious Islamist extremist. She was herself jailed for 12 months for attempting to smuggle a mobile phone sim card during a prison…

3rd October 2016 By Colin Yeo

New Upper Tribunal decision on Zambrano carers

Official headnote from Ayinde and Thinjom (Carers – Reg.15A – Zambrano) [2015] UKUT 560 (IAC): (i) The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano [2011] EUECJ C-34/09 is limited to safeguarding a British citizen’s EU rights as defined in Article 20. (ii) The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that…

27th October 2015 By Colin Yeo

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 [2015] 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…

10th February 2015 By Desmond Rutledge

Whither Zambrano?

One day, some day, the Immigration (European Economic Area) Regulations 2006 will finally be amended to reflect the UK Border Agency understanding of Zambrano. Until then we will all continue to struggle both on a practical and conceptual level. Zambrano rules that third country nationals can derive a right of residence from a Union citizen’s Article 20/21 TFEU rights where expulsion of the third country national, denying the third country national a right of residence or right to work: (i)        would have the effect of depriving the Union citizen of the genuine enjoyment of the substance of the rights associated with their status as a Union citizen: or (ii)      …

28th June 2012 By Iain Palmer

After Zambrano and McCarthy, we now have Dereci…

This entry is part 5 of 9 in the series Zambrano series

On 15th November 2011, the Court of Justice of the European Union (‘the CJEU’) handed down its judgment in the case of Dereci (C-256/11).  This was a much awaited judgment after the ‘Zambrano and Article 20’ revolution was dampened by McCarthy (see here for previous posts in relation to Zambrano and here for McCarthy).  As a quick reminder, Article 20(1) of the TFEU, with which all these cases are concerned, provides that: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.” Unfortunately I cannot say with confidence that Dereci provides all of the answers in respect to how Article 20…

23rd January 2012 By Sarah Pinder

McCarthy judgment available

This entry is part 3 of 9 in the series Zambrano series

[UPDATED] The hotly anticipated (er, by EC law geeks and the parties mainly) judgment in McCarthy v United Kingdom (Case C-434/09) is now out. The appeal was dismissed: dual nationals living in a country of their nationality who have never exercised free movement rights cannot rely on the Citizens’ Directive (2004/38) or on Article 21 TFEU. Or, in the memorable words of the European Court of Justice itself: “1.      Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation…

5th May 2011 By Colin Yeo