A couple of years ago a lot of lawyers practising in housing, immigration and welfare benefits got very excited by the case of Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09. The reason for this excitement was that the ECJ said that art.20, of the Treaty, required member states to grant a right of residence to a third country national, who was the primary carer of an EU national, if a refusal to would result in the EU national being forced to leave the EU..More excitingly, this applied to EU nationals who had not left their member state, i.e. it would apply to the parents of British nationals.

This, everyone presumed, would mean that not only would such a right of residence prevent removal, it would also open the door (or if you write for the Daily Mail the “floodgates”) to entitlement to welfare benefits and housing. This appeared to be confirmed in the case of Pryce v Southwark LBC [2012] EWCA Civ 1572, in which the Court of Appeal held – albeit after Southwark had conceded the appeal – that a Zambrano right of residence conferred a right to welfare benefits and housing.

Now unsurprisingly there has been a large amount of fire fighting on behalf of both the Government and the courts. First, the Government passed regulations excluding those with a Zambrano right of residence from being entitled to housing under Part 6/7 and to welfare benefits. Second,in Harrison v SSHD [2012] EWCA Civ 1736, the Court of Appeal held that the right only extended to those person who cared for children who would otherwise be compelled to leave the country.

Finally, in R (Sanneh) v SSWP [2013] EWHC 793 (Admin), the Administrative Court held that the provision of subsistence payments and accommodation under s.17, Children Act 1989 were sufficient to ensure that an individual would not be compelled to leave the UK.

In R (HC) v SSWP [2013] EWHC 3874 (Admin), HC sought to challenge the regulations that excluded her from housing assistance and the provision of welfare benefits, including child benefit. HC was an Algerian national. She married a British national and had two children from him. Her children were therefore British. She was the victim of domestic violence and left her partner. She had been dependent on her husband and as a result turned to Oldham social services for assistance under s.17, Children Act 1989. They gave her accommodation and subsistence payments.

She was, for the reasons set out above, not entitled to housing under Part 7 or any welfare benefits. She therefore decided to judicially review the SSWP and DCLG on the basis that the regulations, excluding her from both types of benefit, were unlawful because they discriminated against her.

Her claim failed, however, because the evidence showed that, like in Sanneh, she was not compelled to leave the UK. She was being provided with subsistence payments and accommodation by Oldham under s.17, Children Act 1989. More damagingly, her own evidence set out that even if her claim failed she would not leave the UK.

That should have been that. However, the Administrative Court went a step further and considered whether, if she had a right to reside, the Secretary of State’s decision to exclude her from being eligible for housing or welfare benefits amounted to unlawful discrimination. He found that it did not.

First, the treatment did not amount to direct discrimination as it was not on the basis of nationality rather immigration status; it was therefore indirect discrimination. Such discrimination was therefore lawful if it could be justified, i.e. it was a proportionate means of achieving a legitimate aim.

Here the Government contended that the discrimination was justified because:

1) The regulations further the policy of the Government that only those people who are entitled to income related benefits under national law, European Union law and international law have access to those benefits.

2) It encouraged third party nationals, who had children, to be self-sufficient rather than relying on the state.

3) It will maintain the strength of its immigration control.

The margin of appreciation accorded to the State was broad and the court held that these justifications were well within the Government’s margin of appreciation; they were not “mainfestly without reasonable foundation”. As such, the regulations were lawful.

Comment

This is unlikely to be the last word on the subject. I would be very surprised if there was not an appeal in this case and Sanneh is in the process of seeking permission to appeal. I am also aware that the Court of Appeal will be considering the lawfulness of the Part 7 exclusions in the context of an appeal from a s.204 appeal in the county court.

There are two issues really which require sorting out here. The first is when the right to reside arises. The second is what a person with the right is entitled to.

I think it is very unlikely that the right will arise where s.17, Children Act 1989 payments are being made. While it is a question of fact in each case, in such circumstances, it is hard to see how someone would be compelled to leave and any decision to that effect would surely be upheld.

Second, the more interesting question is whether the Government’s justification will be upheld by the Court of Appeal or Supreme Court. That is a hard one to predict, but my instinct is that it will notwithstanding the fact that the justification, at the moment at least, does not appear to distinguish why those with a Zambrano right to reside should be treated differently to those with a more conventional right.