There must be times when Court of Appeal judges think that they have bit parts in an ongoing drama – they have a walk on role. And that must be how the Court felt in Sanneh v SSWP and others [2015] EWCA Civ 49, which concerns the eligibility rules for Zambrano carers of a raft of social assistance benefits. Leading QCs and junior barristers appeared on all sides in a right ding dong that is bound to end up at the Supreme Court, which almost certainly will refer the issues to the CJEU. It also provides a glimpse of how the recent, potentially contradictory, judgments of the CJEU in Brey and Dano are, or might be, treated (although it looks like the UKSC will have the next bite of those rather earlier, in the Mirga and Samin appeals in March) and the question of the ambit of “social assistance”, which in itself is not uninteresting, is also raised, but parked by the CA, in these appeals ([84] – note: this is an important point for the future).
In short, it’s all going on in these appeals. Eligibility is, of course, difficult enough without Zambrano carers, but they make it even more difficult. In essence, a Zambrano carer is a person from a non-EU state whose residence is required in order to enable a child, who is an EU citizen, to exercise their (ie the child’s) treaty rights. As they say in Captain Underpants (my youngest’s favourite book), keep up now. Zambrano carers were made ineligible for most forms of social assistance and homelessness assistance by SIs in 2012. The question in these appeals was as to the lawfulness of those regulations.
There were four main questions: when does the Zambrano carer status arise? Does it confer any rights to social benefits? If the rights are different to EU citizens, does that difference breach the principle of non-discrimination? And, did the Secretary of State properly take in to account the public sector equality duty in making the regulations?
For most of us mere mortals, my best advice is to start reading this case by reading Elias LJ’s short judgment, which begins at [165] (I kid you not). He savages (that’s the only word for it, really) the Secretary of State’s position on the first question. The SoS’ argument was that Zambrano status only arises at the point at which the carer’s removal from the UK is imminent. If that was right, then their entitlement only arises at that point. Arden LJ labours over her answer to this point in endless paragraphs, but Elias LJ just wholly rejected it as “barely coherent” and regarded it as “bizarre”. I have to agree. The only proper basis for the SoS’ position is something akin to the tolerated trespasser – the implication from their continued residence in the UK is that they are tolerated but have no right to do so and, further, commit a criminal offence in so doing. The only proper answer to the first question is that the right arises when the caring obligation begins or when the carer’s leave to remain ends (what Arden LJ describes as the “first date”).
However, that does not mean that they are entitled to social assistance. Here, Arden LJ draws on Baumbast to argue that the nature of Zambrano carer’s rights are not exceptional nor unprincipled but part of what she terms the “effective citizenship principle”, viz that the child would be deprived of the genuine enjoyment of their citizenship rights by having to move from the UK. Nevertheless, the Zambrano carer gets their rights not from the Citizenship Directive (2004/38) but from Article 20, Treaty for the Functioning of the EU – a non-discrimination provision. Here the SoS had a point. If that was the correct analysis, then “there is no basis in that scheme for holding that the Zambrano carer has a right to receive social assistance, the Zambrano carer cannot claim a benefit under it. In the case of EU citizens it is exhaustive of EU law rights and any further right can only be found in national law” ([79]), a finding consonant with the CJEU’s analysis in Dano.
The question then was whether the SoS’ frankly unpleasant argument that the carer was not entitled to assistance was correct. Here, the court disagrees but only to the extent that the carer is entitled to basic support, such as that provided under s. 17, Children Act 1989. As Arden LJ put it, “The law must here be interpreted in the real world and freed from the shackles of unreality. The need to find that someone will be forced to leave the UK is therefore equivalent to saying that the Zambrano carer and the EU citizen child must not be left without the resources which are essential for them to live in this jurisdiction” ([90]) and
In those circumstances, in my judgment, the effective citizenship principle must be taken to mean that the member state will not undermine the right to reside of the Zambrano carer conferred by EU law by failing to meet the basic needs of the Zambrano carer. These needs of course include the need to be able to care for the EU citizen child. [91]
The question, then, was whether this was proportionate, a position which Brey suggests requires an individual assessment. Arden LJ distinguished Brey, however, on grounds which may come back to bite, because, in her view, as they have no citizenship rights, the EU principle of proportionality does not apply (even if it did, she would have accepted that it was proportionate: [98]). Instead, all that is required is basic support, and although concerns were expressed about the sufficiency of s.17 assistance, “this court is not in a position to determine that the basic support test is not met” ([95]). Further, there was no requirement for an individual assessment.
We then move on to the third question – the non-discrimination issue – which, bearing in mind the findings on the first two points was not going to go well for the carers. Richard Drabble QC made the really important point that it isn’t really about the carer but about the child: “EU citizen children of Zambrano carers are treated differently from other EU citizen children in the United Kingdom. Their family life is adversely affected” ([113]). However, that was batted back with the observation that EU law permits reverse discrimination (ie treating your own nationals less favourably). Thus, we are back in Article 14, ECHR territory and one could not say that the policy was manifestly without foundation.
On the final question, that of the public sector equality duty, the Court invoked the principle that the duty is sensitive to the particular context. The context here was that carers were granted rights by the CJEU that they did not have previously; removing those rights to social assistance and restoring the status quo involved no change of policy.
Finally, the court has an extended riff on whether, despite their judgment, they should refer it to the CJEU. There are some interesting observations here on the acte clair principle. Arden LJ says that the non-discrimination argument and Brey fact-specific proportionality arguments are not acte clair, but she refuses to refer because that would be to divorce those issues from the others in the case and the argument that carers have better rights than economically inactive EU citizens (who, currently, are not entitled to claim benefits) would make EU law internally inconsistent and incoherent, and so unlikely to find favour with the CJEU. Elias LJ would also not refer in the circumstances, and said “Although I would not personally go as far as to say that the position is acte clair, if only because the Zambrano resident is a judicially created concept of uncertain scope, that is debatable” ([172]).
But, imho, it won’t be long before these issues and more are referred.