New Regulations 1 – ‘Zambrano’ eligibility

In response to  Zambrano (C-34/09) the Government has laid new regulations today, to come into force on 9 8 November 2012.

The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 http://www.legislation.gov.uk/uksi/2012/2588/introduction/made

The Social Security (Habitual Residence) (Amendment) Regulations 2012 http://www.legislation.gov.uk/uksi/2012/2587/contents/made

The effect of these regulations is that, while the right of residence of ‘Zambrano Carers’ (third country nationals caring for an EU national in their own nation) is confirmed, the carer is excluded from housing assistance and welfare benefits.

This would appear to mean that the outcome of Pryce v Southwark LBC in the Court of Appeal (our note here) will be largely meaningless. However, whether these Regulations will face further challenge, perhaps in the European Court, will remain to be seen.

Posted in Benefits, FLW article, Homeless, Housing law - All and tagged , . RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

10 Comments

  1. Posted 17/10/2012 at 9:19 pm | link to comment

    Would expect directors of social services to be queuing up to challenge since they will get stuck with the bill Parents of small children in a recession with poor/nil employment prospects, a right to reside (so not excluded by Sch 3) and no access to benefits or homelessness services. Someone has either not thought this through or wants to wreck local authority budgets. or both.

  2. Jayne Atherton
    Posted 18/10/2012 at 10:01 am | link to comment

    Am I reading these regulations worngly?

    They appear to exclude not just Zambrano cases but also Ibrahim/Teixeira cases from eligibility (see reg. 2(4) – the first scenario – a person with a derivative right to reside under Reg 15A, EEA Regs 2006 because they are the primary carer of child of a worker/former worker in education).

    Surely this can’t be right – I thought one of the points of the ECJ decision in Ibrahim/Teixeira was that their right to reside was not dependant on them being self-sufficient?

  3. Jayne Atherton
    Posted 18/10/2012 at 11:06 am | link to comment

    A colleague has pointed out to me that I am probably misreading the Reg 15A, EEA Regs 2006.

    I was looking at Reg 15A(4)(a) when in fact it seems that Reg 15A(4A) (which doesn’t exist yet) is the pertinent subsection!

    It seems likely that the new Reg 15A(4A)which presumably will be introduced on or before 8 November will add a derivative right to reside for Zambrano primary carers to the EEA Regs 2006 but at the same time they will be taken out of eligibility for housing and benefits.

    Ibrahim/Teixeira cases will remain unaffected.

  4. Posted 18/10/2012 at 12:00 pm | link to comment

    I am trying to disentangle, but cannot find 2012/2560 which are the new EEA regs brought in on Ruiz Zambrano cases and presumably amend the EEA regs to include new types of right to reside which are those referred ot in the housing and benefit regs. But without the EEA regs they don’t make sense and I cannot find the EEA regs at the moment (searches on the SIs yield no results). …..

  5. Stephen O'Neill
    Posted 18/10/2012 at 12:23 pm | link to comment

    The new regulations do seem to exclude Ibrahim/Teixeira cases from homelessness assistance (although they still have a right to reside). Ibrahim/Teixeira cases are derivative rights of residence under the new regulation 15(A)(1) and will be the primary carer referred to in regulation 15(4)(A). Such persons are excluded from homelessness assistance by the new 6(1)(b)(iii) -unless i’ve missed something.

  6. The.Dark.One
    Posted 18/10/2012 at 4:05 pm | link to comment

    Stephen
    Does it look like the Ibrahim/Texeira casea are also exlcuded from Allocations/Part VI?

  7. The.Dark.One
    Posted 18/10/2012 at 4:14 pm | link to comment

    Would it only affect Texeira/Ibrahim cases when the child is a British Citizen, bearing in mind the wording of 15A(4A)(a)?

  8. S
    Posted 18/10/2012 at 4:38 pm | link to comment

    I have a copy of the amendment of the draft EEA regs. You need that to see that it will insert a new 15A(4A). The eligibility amendment only excludes 15A(4A) cases, i.e. not Teixera.

    Not sure why they haven’t been released yet, but they are intended to come into force on the 8th as well.

    I’d be interested if the Court of Appeal decides to hear argument on the new regs in Pryce. Otherwise the whole appeal is a complete waste of time.

  9. Posted 18/10/2012 at 7:38 pm | link to comment

    Found the EEA regs http://www.legislation.gov.uk/uksi/2012/2560/made/data.pdf
    and, yes, the reference in the eligibility regs is to them. And seems only to affect Ruiz Zambrano type cases. So they get a right to reside, a right to work, but no access to benefits, housing or homelessness services. So not excluded from social services by Sch 3, and mostly single parents of young children with little prospect of working and no prospect of working, supporting a small child and paying private sector rents and childcare out of their wages. so social services here we come…..(R (U) v Newham LBC [2012] EWHC 610 (Admin))

  10. J
    Posted 08/11/2012 at 2:59 pm | link to comment

    Appeal allowed, but no transcript or note of judgment yet: http://www.deightonpierceglynn.co.uk/news/news_1.htm#123 I’m being told that it was effectively allowed by consent when Southwark threw the towel in. Anyone able to confirm?

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