HC v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Elias,Lord Justice Burnett |
| Judgment Date | 10 February 2015 |
| Neutral Citation | [2015] EWCA Civ 49 |
| Docket Number | Case Nos: C3/2013/0466 + B5/2014/0388 + B5/2013/2872 + C1/2014/0039 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 2015 |
[2015] EWCA Civ 49
Lady Justice Arden
Lord Justice Elias
and
Lord Justice Burnett
Case Nos: C3/2013/0466 + B5/2014/0388 + B5/2013/2872 + C1/2014/0039
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(1) The Upper Tribunal
(Administrative Appeals Chamber)
Judge Jacobs
[2013] UKUT 490 (AAC)
(2) Croydon County Court
His Honour Judge Ellis
3CR02096
(3) Birmingham Civil Justice Centre
His Honour Judge McKenna
BM30027A
(4) Queen's Bench Division
(Administrative Court)
Mr Justice Supperstone
Royal Courts of Justice
Strand, London, WC2A 2LL
(1)
Mr Stephen Knafler QC, Mr Desmond Rutledge and Mr Ali Bandegani (instructed by Coventry Law Centre) for the Appellant in Sanneh
Mr Jason Coppel QC and Ms Amy Rogers (instructed by Treasury Solicitors) for the Respondent in Sanneh
(2)
Mr Toby Vanhegan (instructed by Croydon and Sutton Law Centre) for the Appellant in Scott
Mr David Lintott (instructed by Wragge Lawrence Graham & Co LLP) for the Respondent in Scott
(3)
Mr Christopher Baker and Mr Sam Madge-Wyld (instructed by Birmingham City Council Legal Services) for the Appellants in Merali & Ors
Mr Lindsay Johnson (instructed by Bhatia Best) for the Respondents in Merali & Ors
(4)
Mr Richard Drabble QC and Mr Ranjiv Khubber (instructed by Platt Halpern Solicitors) for the Appellant in HC
Mr Jason Coppel QC and Ms Amy Rogers (instructed by Treasury Solicitors and by the Solicitors to Her Majesty's Commissioners for Revenue and Customs) for the Respondents in HC
Mr Charles Banner and Mr Matthew Moriarty (instructed by Herbert Smith Freehills) for the Intervener (AIRE Centre)
Mr Jason Coppel QC and Ms Amy Rogers (instructed by Treasury Solicitors) for the Intervener (Secretary of State for Communities and Local Government)
Hearing dates: 4–7 November 2014
These appeals concern the vital question whether " Zambrano carers", who are non-EU citizens responsible for the care of an EU citizen child, are entitled to social assistance (that is, non-contributory welfare benefits) on the same basis as EU citizens lawfully resident here. Currently, Zambrano carers who are in need and unable to work receive benefits on a different and less generous basis, namely that on which social assistance is granted to third country nationals ("TCNs") to whom the UK has not given unconditional leave to enter the UK or remain (i.e. leave without a restriction on access to public funds).
For the detailed reasons given below, I conclude that Zambrano carers who are in need and unable to work are not entitled to the same level of payments of social assistance as is required by EU law to be paid to EU citizens lawfully here. The UK must pay them such amount as will enable them to support themselves in order to be the carer for the EU citizen child within the EU, but, subject to that, may determine to pay social assistance to them on some different basis. That means that the current statutory provisions comply with EU law and the European Convention on Human Rights ("the Convention") and represent the limit of these appellants' current entitlement to non-contributory social benefits.
SOME KEY PRINCIPLES AND TERMS USED IN THIS JUDGMENT
My starting point is to explain some key principles and terms used in this judgment. The key feature of Zambrano carers is that they are a group created by EU law and having rights under EU law. They are called " Zambrano carers" after the decision of the Court of Justice of the European Union ("the CJEU") in Case-34/09 Zambrano v Office national de l'emploi [2012] QB 265. That established that, if a member state of the EU refused to grant a right of residence to a TCN with dependent EU citizen children in the member state of which those children are nationals and in which those children reside, and that refusal would mean that the children would be deprived of "the genuine enjoyment of the substance" of their EU citizenship rights by having to move out of the EU, the member state could not take measures that have the effect of refusing a right of residence in those circumstances. I will call this rationale the "effective citizenship principle" and national measures of the kind precluded by it "prohibited national measures". The rights of the Zambrano carer are derived from the EU citizenship rights of the child for whom she cares.
The facts of Zambrano are instructive and may be briefly summarised. A Colombian couple living without leave in Belgium had two children who were Belgian nationals. The father had lost his job but could not obtain unemployment benefit because he had no right to reside in Belgium. The Belgian authorities sought to remove him. The CJEU held that Belgium could not remove him and was bound to give him a residence card showing that he had the right to reside so that he could work to support his family. In the circumstances, "it had to be assumed" that such a refusal would lead to the children having to leave the EU (CJEU judgment, [44]). The member state had to give "a right of residence" ([45]). The facts of Zambrano show that carers may be male or female, but in this judgment I will in general refer to them as feminine.
The effective citizenship principle means that member states may not indirectly remove the benefits of a person's status as an EU citizen. This principle is derived from Articles 20 and 21 of the Treaty on the Functioning of the European Union ("TFEU"), which provide in material part as follows:
" Article 20
1. Citizenship of the European 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.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
a) The right to move and reside freely within the territory of the Member States….
Article 21
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect."
The effective citizenship principle therefore draws together the status of EU citizenship and the EU law principle of effectiveness. The EU law principle of effectiveness means that rights given by EU law must be protected in substance. As it is sometimes put, national law must not make it impossible or excessively difficult to exercise EU law rights.
The principle of effectiveness in these appeals is in conflict with another principle, that of conferral of competences. Under Article 5(1) TEU, the EU, including its institutions such as the CJEU, can only act within the limit of the competences conferred on it by the member states in the EU Treaties. A key characteristic of Zambrano carers is that the member state where they reside has not given them permission to reside there. This may be because they entered on a visa which has expired but not been renewed, or because they entered illegally. This point is important because member states are entitled, subject to EU law, to control the entry of non-EU citizens and, in practice, they often do so in order to protect public finances from calls for social assistance. A member state may, therefore, decide as a matter of policy to try to deter illegal immigration or unlawful presence in the member state by restricting social assistance for these persons.
The appellants in these appeals are all TCNs who are the primary carers of minor children in their care who are EU citizens and British nationals. They seek social assistance of various kinds on the same basis as EU citizens resident here. When EU citizens exercise their freedom of movement to come to the UK, they are entitled to social benefits under EU law as explained in more detail in paragraphs 41 to 46 below. That legislation permits "family members" of EU nationals to reside with the EU citizen where the EU citizen exercises his right of freedom of movement to live in another member state, but this group cannot include the appellants as they are not within the definition of "family member".
No one has sought to challenge the appellants' need for financial support.
CURRENT BENEFIT ENTITLEMENT OF ZAMBRANO CARERS UNDER ENGLISH LAW
The position of Zambrano carers was not separately recognised in domestic social security legislation prior to 8 November 2012. It has now been recognised, but in each case with a view to limiting the rights of Zambrano carers and making it impossible for them to make claims for the benefits relevant to these appeals after that date. The social security legislation provides that, to be entitled to those benefits, a person must be "habitually resident" in the United Kingdom for the purposes of the relevant legislation. There is a list of persons who are not to be treated as habitually resident here even if they otherwise would be so resident. The changes made in November 2012 involve adding a new category to that list by...
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