The Queen (on the application of HC) v 1. Secretary of State for Work and Pensions and Others Oldham Metropolitan Borough Council (4th Defendant/Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 06 December 2013 |
| Neutral Citation | [2013] EWHC 3874 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 December 2013 |
| Docket Number | Case No: CO/8707/2013 |
[2013] EWHC 3874 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT in MANCHESTER
Sitting at the Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/8707/2013
and
Helen Mountfield QC and Ranjiv Khubber (instructed by Messrs Platt Halpern Solicitors) for the Claimant
Jason Coppel QC and Amy Rogers (instructed by The Treasury Solicitor and The General Counsel and the Solicitor to HM Revenue & Customs) for Defendants 1–3
The 4 th Defendant/Interested Party was not represented
Introduction
The Claimant is an Algerian national. She has been in the UK since 2008, initially on a six-month visitors' visa, and thereafter she overstayed and remained unlawfully. In 2010 she married Mr H, a British national of Egyptian origin, in a religious ceremony and lived with him in Tower Hamlets for two years. She has two children, AH, born on 28 August 2011, and IH, born on 23 March 2013. They are British nationals, both born in Britain. When the Claimant was pregnant with her second child, she was the victim of domestic violence from her husband. She left him in October 2012 to stay with her sister and sister's family in Oldham. The Claimant's sister lives with her disabled husband and three daughters. She could not accommodate the Claimant other than in the very short term, and could not afford to support the Claimant, who was then pregnant, and her child. The Claimant had been financially dependent on her husband.
The Claimant approached Oldham County Council, the Fourth Defendant, for assistance on 30 November 2012. xAt first they would not assist her, but subsequently agreed to provide limited temporary housing and financial assistance under the Children Act 1989 ("the 1989 Act"), section 17. Following the order of HHJ Pelling QC made on 1 August 2013, the Claimant and her children are being accommodated by the Fourth Defendant, as an interim measure, in two-bedroom accommodation and are being given £55 per week to cover their subsistence needs and a further £25.50 towards utility costs.
The Claimant challenges the legality of three statutory instruments (the "Amending Regulations"):
i) The Social Security (Habitual Residence) (Amendment) Regulations 2012 made by the Secretary of State for Work and Pensions, the First Defendant;
ii) The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012, made by the Secretary of State for Communities and Local Government, the Second Defendant; and
iii) The Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012, made by HM Revenue and Customs, the Third Defendant.
The Amending Regulations have the effect of denying the Claimant access to mainstream welfare benefits and housing provision.
The principal issue in these proceedings is whether the Amending Regulations are compatible with EU law or unlawfully discriminate on various grounds.
In summary it is the Claimant's case that the Court of Justice of the European Union in Ruiz Zambrano v Office National de L'Emploi [2012] QB 265 (" Zambrano") decided that a minor child has an EU law right of residence on territory of the Member State of which he is a national as an EU citizen. Further the court decided that the parent of an EU national child who is themselves a third country national upon whom the minor child is dependent, has an EU law right of residence in the child's state of residence and nationality, and a right to work so as to support the child. Consequently the Claimant, as the third country national parent of two British children resident in the UK, has EU law rights to reside and work in the UK, derived from her children's rights to reside here as EU citizens. The Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") were amended by the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 ("the EEA Amendment Regulations") to give effect to the Zambrano decision. At the same time amendments were made to the social security, tax credits and housing and homelessness regimes through secondary legislation, the purpose of which was to exclude from eligibility for social security benefits, child tax credits and housing entitlements, persons, whether in work or not, whose rights of residence arose pursuant to the Zambrano doctrine. These changes, it is said, undermine the practical effect of the Zambrano doctrine: they discriminate against Zambrano carers and their EU national children, and are unlawful.
I heard oral submissions from Ms Helen Mountfield QC, for the Claimant, and Mr Jason Coppel QC for Defendants 1–3, on 22 and 23 October 2013. At the conclusion of the oral hearing I gave permission to the parties to make further limited submissions in writing, which subsequently I received.
The Factual Background
In her first witness statement made on 5 July 2013 the Claimant described the support that she was given on an emergency, temporary basis by the Council in one room at a Travelodge in Oldham and the effect on her children of living off the £45 per week financial support provided. She states:
"48. My children are British citizens, and have a right to live in the UK. I want them to have a good life here and, when they are a bit older, I would like to work and to support them financially. At present, because they are so young, it is not possible for me to work, and I understand that I cannot claim benefits because of the regulations that have been passed by the Government which say I am not eligible.
49. I feel trapped. I am unable to leave and yet unable to give my children a normal and happy life here in the UK."
Her second witness statement dated 13 September 2013 was made after she moved into new accommodation, a two-bedroom flat, following the order of the judge. At paragraph 10 she states:
"In my current circumstances the most I can hope to do is to subsist. If anything unexpected happens even this is threatened."
At paragraph 36 she states:
"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."
Evidence from the No Recourse to Public Funds ("NRPF") Network, a national network of organisations focussed on the statutory response to persons with no recourse to public funds, suggested that "a British child with a Zambrano carer supported by the local authority is likely to grow up experiencing high levels of poverty for their entire childhood, when a British child with British parents would benefit from significantly higher levels of support through access to public funds" (witness statement of Mr Millard, Chair of NRPF Network, para 40).
Statutory Framework
The Treaty on the Functioning of the European Union ("the Treaty")
Part 2 of the Treaty is concerned with non-discrimination and citizenship of the Union. Articles 18, 20 and 21, in so far as are material, provide:
" Article 18
Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
Article 20
1. 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.
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 Charter of Fundamental Rights of the European Union ("The Charter")
The relevant provisions of the Charter are Articles 1, 3, 7, 15, 20–21, 23–24, 33–34 and 51–52. These Articles, in so far as they are material, provide:
..." Article 1
Human Dignity
Human dignity is inviolable. It must be respected and protected.
Article 3
Right to the integrity of the person
1. Everyone has the right to respect for his or her physical and mental integrity.
Article 7
Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
Article 15
Freedom to choose an occupation and right to engage in work
3. Nationals of third countries who are authorised to work in the territories of the Member States are entitled to work in conditions equivalent to those of citizens of the Union.
Article 20
Equality before the law
Everyone is equal before the law.
Article 21
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