Not sure how this one didn’t make it on to the blog before…
Back in March 2011, the Court of Justice of the European Union gave judgment in Zambrano (C-34/09) [For a report on that judgment, see Free Movement, here]
The upshot of Zambrano was that where a child (or dependant adult) who is a citizen of an EU country depends on a third country national to live in that country, the third party national must be given a right of residence and work to preserve the child’s (or dependent adult’s) ‘enjoyment of the rights conferred on them as a citizen of the Union’. This is substantially different to Ibrahim and Texeira (our note), which concerned the Art 12 rights of EU national children residing in another EU country. This case concerns EU national children in their ‘home’ country and third party national carers.
So, if a ‘right of residence’ and permission to work must be given, what of eligibility for homeless assistance?
On the one hand is the argument that a ‘Zambrano’ carer has a right to reside, for the purposes of Regulation 6 of the Eligibility Regulations, which is an enforceable right under s.2(1) European Communities Act and article 20 Treaty on the Functioning of the European Union. ‘Zambrano’ carers are therefore not subject to immigration control, s.7 Immigration Act 1988. The Regulation 6 right to reside confers eligibility for homeless assistance under Part VII.
On the other hand, the argument is that the ‘right’ vests in the child, not the ‘Zambrano’ carer, such that the carer him/herself does not have an enforceable right, remains ‘subject to immigration control’ and are not eligible for Part VII assistance.
Further muddying the waters is the Court of Justice of the European Union decision in McCarthy [2011] EUECJ C-434/09 which seems to decide the issue of whether EU rights are applicable for a national in his/her own country in the opposite direction, so Article 21 TFEU does not apply (but doesn’t explain the difference between Art 20 TFEU and Art 21).
The Court of Appeal will be hearing Pryce v Southwark LBC (on appeal from a s.204 appeal in Central London County Court and R (TJ) v Birmingham CC (a refusal of interim accommodation pending review of a decision that the applicant was not eligible) on 7 or 8 November 2012. We’ll have the update as soon as possible.
Anyone with a similar case should consider staying pending the outcome.