R Jamil Sanneh v The Secretary of State for Work and Pensions and Another Birmingham City Council (Interested Party)

JurisdictionEngland & Wales
JudgeMr Justice Hickinbottom
Judgment Date10 April 0013
Neutral Citation[2013] EWHC 793 (Admin)
Date2013
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase Nos: CO/8540/2011 and CO/12712/2012
Year2013

[2013] EWHC 793 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN BIRMINGHAM

Birmingham Civil Justice Centre

33 Bull Street, Birmingham, B4 6DS

Before:

Mr Justice Hickinbottom

Case Nos: CO/8540/2011 and CO/12712/2012

Between:
The Queen on the application of Jamil Sanneh
Claimant
and
(1) The Secretary of State for Work and Pensions
(2) The Commissioners for her Majesty's Revenue and Customs
Defendants

and

Birmingham City Council
Interested Party

Stephen Knafler QC and Desmond Rutledge (instructed by Birmingham Law Centre) for the Claimant

Jason Coppel and Julia Smyth (instructed by the Treasury Solicitor) for the Defendants

Jonathan Cowen (instructed by Birmingham City Council Legal Services) for the Interested Party

Hearing dates: 11–12 March 2013

Further written submissions: 14–15 March 2013

Approved Judgment

Mr Justice Hickinbottom

Introduction

1

The Claimant Jamil Sanneh is a Gambian national. She arrived in the United Kingdom in 2006, aged 24, on a student visa which did not permit her to work or to have recourse to benefits or other public funds.

2

During the currency of her visa, the Claimant met Badou Bah, also originally Gambian, but a British citizen by marriage. He had separated from his wife before he met the Claimant, his divorce being finalised in mid-2009. On 17 September 2009, a daughter, Awa, was born to the Claimant and Mr Bah. Through her father, Awa is a British citizen. Unfortunately, the Claimant and Mr Bah split up before Awa was a month old. For all intents and purposes, the Claimant has been Awa's sole carer since.

3

The Claimant's student visa expired in December 2009, but she overstayed. However, although she otherwise has no entitlement to be in the United Kingdom, the Claimant contends that she has the right to reside, as the primary carer of a dependent British citizen, Awa, who would otherwise be forced to leave the European Union ("EU") and would thereby be deprived of the opportunity to enjoy her rights as an EU citizen, a derivative right recognised by the Court of Justice of the European Union ("the European Court") in Ruiz Zambrano v Office National de l'Emploi [2011] EUECJ C-34/09, [2012] QB 265 (" Zambrano") and the domestic regulations made to give effect to that judgment.

4

The Claimant is unemployed. She has made various applications for mainstream social security benefits, namely income support, child tax credit and child benefit. So far as relevant, those have all been refused by the First Defendant Secretary of State who is responsible for the administration of income support, and by the Second Defendant Commissioners ("HMRC") who are responsible for the administration of child tax credit and child benefit. There is a right of appeal against those refusals, to the First-tier Tribunal and thence to the Upper Tribunal and the Court of Appeal, a right which the Claimant has exercised. In those proceedings, in which the Claimant's substantive entitlement to the benefits will be determined, the Claimant contends that, on the basis of the principles set out in Zambrano, the denial of access to those benefits creates a situation in which she will be forced to leave the United Kingdom due to lack of means; with the result that her daughter will also be compelled to leave the United Kingdom to follow her mother, who is her primary carer. It is only by the grant of those benefits to the Claimant that her daughter's right as an EU citizen to reside in the territory of the EU can be enjoyed.

5

In this claim, the Claimant challenges the refusal of the Defendants to make interim payments pending final resolution of her entitlement to those benefits.

The Relevant European Law

6

By article 4(3) of the Consolidated Treaty on European Union, each member state is required to take appropriate measures to ensure fulfilment of its obligations arising out of the Treaty on the Functioning of the European Union ("the TFEU"). It is well-established that, so long as the result is compliance, the means by which EU obligations are met are entirely a matter for each member state. That principle applies irrespective of the source of the EU obligation, which might be, for example, one of the relevant treaties, directives, or a European Court judgment.

7

Reflecting rights first enunciated in the Maastricht Treaty, articles 20 and 21 of the TFEU provide that every national of a member state shall be a citizen of the EU, and shall have the right to move and reside freely within the territory of the member states, a right developed in EC Directive 2004/38/EC ("the Citizens Directive"). The Citizens Directive grants rights to EU citizens, and to any "family member" of such citizens defined as a spouse or partner of the EU citizen, or direct minor and/or dependent descendant or direct dependent ascendant relative of the EU citizen or his/her spouse or partner — but not a non-dependent ascendant relative. As a matter of domestic law, the Citizens Directive is given effect by the Immigration (European Economic Area) Regulations 2006 (SI 2006 No 1003) ("the EEA Regulations").

8

Zambrano concerned the issue of whether non-EU family members could derive rights under EU law from the rights of residence conferred on EU citizens by articles 20 and 21 of the TFEU. Mr Zambrano, his wife and child were Colombian nationals, who were refused asylum in Belgium but nevertheless stayed there. Despite not having a work permit, he obtained full-time employment. Two further children were born who were, by reason of their place of birth, Belgian nationals and hence EU citizens. Mr Zambrano lost his job, having completed the requisite working days that would otherwise have qualified him for unemployment benefit; but he was denied that benefit because the Belgian legislation in respect of employment of foreign workers took out of count days worked without a work permit. Before a Belgian employment tribunal, he argued that articles 20 and 21 required Belgium as a member state to grant him, as an ascendant relative upon whom minor children who were EU citizens depended, an exemption from the national requirement for a work permit.

9

The Grand Chamber of the European Court agreed. They said:

"41. As the Court has stated several times, citizenship of the European Union is intended to be the fundamental status of nationals of member states…

42. In those circumstances, article 20 [of the TFEU] precludes national measures which have the effect of depriving citizens of the [EU] of the genuine enjoyment of the substance of their rights conferred by virtue of their status as citizens of the [EU]….

43. A refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the [EU], would have to leave the territory of the [EU] in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would result in the children, citizens of the [EU], having to leave the territory of the [EU]. In those circumstances, those citizens of the [EU] would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the [EU].

45. Accordingly, the answer to the question referred is that article 20 [of the TFEU] is to be interpreted as meaning that it precludes a member state from refusing a third country national on whom his minor children, who are [EU] citizens, are dependent, a right of residence, in the member state of residence and nationality of those children, and from refusing to grant a work permit to that third country national, insofar as such decisions deprive those children of the genuine enjoyment of the substance of their rights attaching to the status of [EU] citizen."

10

In Zambrano, the Court was therefore exclusively concerned about the rights of the EU children, conferred as a matter of European law by articles 20 and 21 of the TFEU, to reside freely within the territory of the EU. Without conferring on Mr Zambrano, a non-EU citizen, a right of residence and a right to work in Belgium, he would have been compelled to leave Belgium and his children would have been compelled to leave with him, thereby depriving them of the opportunity of genuinely enjoying the substance of their rights of residence by virtue of their status as EU citizens. His rights were therefore truly derivative, being conferred solely to ensure his children were enabled to enjoy their rights of residence as EU citizens.

11

That focus has been emphasised by the European Court and domestic courts and tribunals in subsequent cases. I was referred particularly to four cases which have specifically considered Zambrano.

12

In Dereci v Bundesministerium für Inneres [2011] EUECJ C-256/11, [2012] All ER (EC) 373 (" Dereci"), Mr Dereci was a Turkish national, who entered Austria illegally and married an Austrian national, by whom he had three children who, by their mother, were Austrian nationals. The family lived together in Austria. However, the children were not dependent on Mr Dereci for their subsistence, which was or could have been provided by his Austrian wife.

13

The European Court held that, in these circumstances, the children's rights under articles 20 and 21 of the TFEU would not be jeopardised by their father's removal from Austria. The Grand...

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