R (on the application of HC) v Secretary of State for Work and Pensions and Others
| Jurisdiction | England & Wales |
| Judge | Lord Carnwath,Lord Clarke,Lord Wilson,Lord Sumption,Lady Hale |
| Judgment Date | 15 November 2017 |
| Neutral Citation | [2017] UKSC 73 |
| Date | 15 November 2017 |
| Court | Supreme Court |
[2017] UKSC 73
Lady Hale
Lord Clarke
Lord Wilson
Lord Sumption
Lord Carnwath
Appellant
Richard Drabble QC
Ranjiv Khubber
(Instructed by Platt Halpern Solicitors)
Respondents
Jason Coppel QC
Amy Rogers
(Instructed by The Government Legal Department)
Intervener (The AIRE Centre)
Charles Banner
(Instructed by Herbert Smith Freehills LLP)
Heard on 21 and 22 June 2017
( with whom Lord Clarke, Lord Wilson and Lord Sumption agree)
This appeal concerns the rights of so-called " Zambrano carers" and their children to financial support from the state. That expression is derived from the decision of the Court of Justice of the European Union dated 8 March 2011, in Ruiz Zambrano v Office national de l'emploi (Case C-34/09) [2012] QB 265. The case concerned a Colombian who had been living in Belgium with his wife, and working (and paying social security contributions), but without a right to reside. Their three children, born between 2003 and 2005, acquired Belgian nationality at birth, and with it European citizenship and the right of free movement, under article 20 of the Treaty on the Functioning of the European Union ("TFEU"). When in 2005 he lost his job, he was refused unemployment benefit, because under the relevant national law that depended on his having a right to reside. The European court held that the refusal of such a right was unlawful because it would result in the children being deprived of effective enjoyment of their rights as European citizens.
The present appeal arises from a challenge to the legality of amendment regulations introduced in this country in November 2012 in response to the Zambrano decision. They were designed to limit the rights of Zambrano carers to claim certain categories of non-contributory social security assistance to which those "habitually resident" would otherwise be entitled: more specifically, income-related benefits, child benefit and child tax credit, and housing and homelessness assistance. The amendment regulations in question are:
i) The Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587), amending the Income Support (General) Regulations 1987 (SI 1987/1967).
ii) The Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012 (SI 2012/2612), amending the Child Benefit (General) Regulations 2006 (SI 2006/223).
iii) The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 (SI 2012/2588), amending the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI 2006/1294).
The effect of the amendment in each case is to add to the relevant list of exclusions from qualifying rights of residence, a right to reside existing by virtue of TFEU article 20, where that right "arises because a British citizen would otherwise be deprived of the genuine enjoyment of the substance of their rights as a European Union citizen".
The Secretary of State's evidence (in a statement by Gareth Cooper, Policy Adviser) refers to the Explanatory Memorandum to the amendment regulations. This explained the purpose as being to maintain the existing policy that non-European Economic Area (EEA) nationals are not entitled to claim income-related benefits, following the ruling in the Zambrano case. Mr Cooper (para 8) quotes it as follows:
"… the Home Office are amending their regulations to provide a right to reside and a right to work to a non-EEA national who is a primary carer of a dependent British citizen only if the British citizen would otherwise be forced to leave the UK and be deprived of exercising their rights as an EU citizen. If the social security regulations are not amended such persons would become entitled to income related benefits."
The amendments had been subject to consultation with local authority associations and the Social Security Advisory Committee, and had attracted no objection or substantive comment. According to Mr Cooper it had been estimated by the Home Office that there would initially be some 700 people a year qualifying for Zambrano rights, giving rise to a potential annual cost of between £3.8m and £9.4m in respect of income support, housing benefit and council tax benefit together. Mr Cooper does not indicate what consideration, if any, had been given to how children of workless Zambrano carers were to be supported, if not entitled to such assistance.
The facts relevant to the present appellant, Mrs HC, can be shortly stated. She is an Algerian national who has been living in this country since 2008, having arrived with leave but over-stayed. In 2010 she married a British national on whom she was financially dependent. She has two children by him, born in August 2011 and March 2013. Her relationship with him ended after domestic violence in late 2012, when she sought help from the Oldham City Council, in whose area she was then living. After an initial refusal, the council agreed to provide temporary housing and financial support under section 17 of the Children Act 1989. Separate judicial review proceedings against the council resulted in an interim order by His Honour Judge Pelling QC, under which she and her children were accommodated by the council in two bedroom accommodation and given £80.50 per week to cover subsistence and utility costs. Those proceedings were later stayed by consent on the council's agreement to carry out a further assessment of their needs, and to continue the support in the meantime.
It is now common ground (following a decision of the First-tier Tribunal in April 2014) that she is entitled to reside in the UK as a Zambrano carer. It is also not in dispute that that entitlement, taken with the financial support provided by the council, provides not only the legal right, but also the practical support, necessary to protect the children against being obliged to leave the territory of the European Union while under her care. Her case (para 36 of her second witness statement) is that this is not enough:
"As I cannot go back to Algeria and have no right to live in any other country my only option is to remain here, where at least I have the protection of a prohibited steps order and the British courts. … Also my children are British. This is their home country and the only place they know. They are entitled to grow up here and, I pray, to enjoy the same benefits and opportunities of growing up in Britain that other British children have. At present when I see how they must live compared to their British cousins and step-siblings I know that they do not in practice have the same rights. We are expected to make do with far less, the bare minimum, only enough to survive."
In legal terms, Mr Drabble QC on her behalf submits that it was not legally possible for the amendment regulations to deny a Zambrano carer and her child mainstream welfare and housing provision, without contravening what he calls "the fundamental principle of equal treatment that is part of EU law", as embodied in article 21 of the EU Charter of Fundamental Rights ("the Charter"). As a fall-back position he relies also on article 14 of the European Convention on Human Rights ("the Convention").
Against this background, the following issues arise:
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i) The Zambrano principle.
Does the principle require from the state more for the children and their Zambrano carer than bare protection (legal and practical) against being obliged in practice to leave the territory of the Union?
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ii) Discrimination:
a) In so far as the regulations placed limits on the benefits available to Zambrano carers was the UK "implementing Union law" (within the meaning of article 51 of the EU Charter), so as to bring the Charter into play? If so, did those limits involve unjustified discrimination on grounds prohibited by article 21 of the Charter?
b) Alternatively, did those limits involve unjustified discrimination contrary to article 14 of the Convention, taken with article 8 (right to respect for private and family life) or article 1 of the First Protocol (right to property)?
I start from the formulation of the principle by the European court in Zambrano itself. Having described citizenship of the European Union as "the fundamental status of nationals of the member state", the court said:
"42. In those circumstances, article 20 TFEU … precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the European Union …
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 European Union, would have to leave the territory of the European Union 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 also result in the children, citizens of the Union, having to leave the territory of the European Union. In those...
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