Sanneh v The Secretary of State for Work and Pensions

JurisdictionEngland & Wales
JudgeLord Justice Pitchford
Judgment Date18 December 2013
Neutral Citation[2013] EWCA Civ 1818
CourtCourt of Appeal (Civil Division)
Date18 December 2013
Docket NumberC3/2013/0466

[2013] EWCA Civ 1818

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand

London, WC2A 2LL

Before:

Lord Justice Pitchford

C3/2013/0466

Between:
Sanneh
Appellant
and
The Secretary of State for Work and Pensions
Respondent

Mr S Knafler QC (instructed by Coventry Law Centre) appeared on behalf of the Appellant

Mr J Coppel QC (instructed by Treasury Solicitors) appeared on behalf of the Respondent

Lord Justice Pitchford
1

The applicant in this renewed application for permission to appeal is a native of Gambia now aged 32. She came to the United Kingdom in 2006 with a student visa. On 17 September 2009 she gave birth to a daughter, A, fathered by a man who had acquired citizenship by marriage. The father in effect has abandoned any responsibility of parenthood, save to the extent of making some financial contributions towards the child's upkeep. A is British citizen and therefore a citizen of the EU.

2

On 13 June 2011 the applicant made a claim for income support. This was refused on the ground that she was a person subject to immigration control within the meaning of section 115(3) and (9) of the Immigration and Asylum Act 1999.

3

The applicant lodged an appeal against that decision on 15 August 2011 and on 5 February 2012 the social security first tier tribunal judge, Mrs C Wall, allowed the appeal. She did so on this basis: A was entitled to the protection of article 20 of the Treaty for the Functioning of the European Union ("TFEU") which provided that every person holding the nationality of a member state shall be a citizen of the union.

4

In Zambrano v Office National de l'emploi (ONEm) case C-34/09, the European Court of Justice found that the substance of the rights of citizenship of dependent children required that Belgium should have granted to the child's father, a non-EU national, a work permit and residence permit, since refusal to do so had the effect of depriving his children of the substance of the rights attaching to the status of European citizen.

5

The first tier tribunal held that on the facts A did not have a viable future as a citizen of the EU, since without the income support sought by her mother she had no viable future in the UK and would be required to return to Gambia with her mother. The Secretary of State appealed to the upper tribunal.

6

On 7 January Upper Tribunal Judge Edward Jacobs allowed the appeal, holding that the first tier tribunal had made an error of law that vitiated its decision. He held that Zambrano did not have the effect of providing the applicant with a right to remain in the United Kingdom. It was not enough for the first tier tribunal to assess what might have been the viability of A's future in the United Kingdom; the state was required to act only if at the date of the...

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