Zambrano carers: ‘Benefits tourism’ appeal dismissedasad-khan

In the judgment, Lady Hale found this to be a “very troubling” case but she agreed with Lord Carnwath that the appeal had to be dismissed. The thing that troubled her Ladyship was that the welfare of British children was at stake. In addition to the fact that HC’s case involved the interpretation of the landmark decision in Zambrano (Case C-34/09, EU:C:2011:124), the impact of the Government’s actions on the neglected rights of British children remained a striking feature of this appeal. However, despite the exceptional nature of the Zambrano right of residence, the Supreme Court pointed out that the CJEU’s ruling is not predisposed to maintaining the unity of the family and does not guarantee any particular quality of life or standard of living. “HC” has been living the UK since 2008. She is Algerian and became an overstayer when her marriage to a British citizen ended owing to domestic violence. Her right of residence was not in doubt because she is a Zambrano carer, i.e. a non-EU citizen who was the primary carer of an EU citizen. The Zambrano principle precludes EU member states from enacting measures against a Zambrano carer in circumstances where those measures result in the deprivation of the genuine enjoyment of the dependent EU citizen’s rights under EU law.

Oldham Council accommodates HC and her children under the Children Act 1989, s 17. She receives £80.5 per week in subsistence and utility costs. It was undisputed that this was sufficient for the family to remain. Notably, Zambrano carers are precluded from claiming various income-related benefits by the operation of the Social Security (Habitual Residence) (Amendment) Regulations 2012, the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 and the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012. These regulations limit Zambrano carers’ rights to claim some types of non-contributory social security assistance accessible by “habitually resident” persons. The changes aimed to curb potential annual expenditure between £3.8m and £9.4m that 700 people a year qualifying for Zambrano rights would trigger in terms of income support, housing benefit and council tax benefit. HC complained that her British children had to survive on “the bare minimum” because they were precluded from enjoying the same benefits and opportunities of growing up in Britain like normal British children such as their British step-siblings/cousins with the result “that they do not in practice have the same rights.”

Lower Courts

At first instance, Supperstone J dismissed HC’s challenge to the regulations. Applying in Bah v UK (2012) 54 EHRR 21 he held that the discrimination was justified on the facts of HC’s case. The Court of Appeal upheld the decision. Arden, Burnett and Elias LJJ unanimously held that EU law does not entitle Zambrano carers to the same level of payments of social assistance as lawfully resident EU citizens. In light of Patmalniece [2011] UKSC 11, they took the view that the discrimination between Zambrano carers and other benefits claimants is not direct discrimination on the grounds of nationality but is indirect discrimination on immigration status.

Arden LJ did not see Zambrano “as an exceptional or unprincipled piece of jurisprudence” and observed that it creates residence rights necessary to give meaning and effectiveness to an EU citizenship’s status. Her Ladyship judged that EU law does not apply when a member state treated some people within its jurisdiction less favourably than others. Applying Dano (C-333/13EU:C:2014:2358), member states are not constrained by any EU treaty provision or legislative measure from deciding the level of benefits for Zambrano carers.

Interpreting the law in the “real world and freed from the shackles of unreality”, Arden LJ followed Lady Hale’s approach in Patmalniece that only EU nationals could rely on the TFEU, art 18. The authorities of Vatsouras (C-22/08, EU:C:2009:344) and MartínezSala (C-85/96, EU:C:1998:217) confirmed this analysis.

The Supreme Court

The Court rejected the idea that denying conventional welfare and housing provision to a Zambrano carer and her child is unlawful because of causing unlawful discrimination under the CFR, art 21 and/or under the ECHR, art 14. Lords Clarke, Wilson and Sumption agreed with Lord Carnwath’s lead judgment and Lady Hale delivered a concurring judgment.

(i) The Zambrano Principle

The Zambrano line of cases only concern the risk that the dependents of Zambrano carers might be compelled to leave EU territory and thus be deprived of the genuine enjoyment of their rights as EU citizens. The Zambrano judgment did not address issues of financial support and entitlement to benefits despite AG Sharpston’s rejection of arguments about the non-EU primary carer being an “unreasonable burden” on public finances. Dereci (Case C-256/11, EU:C:2011:734) confirmed the exceptional nature of the Zambrano doctrine. Reliance placed in Rendón Marín (C‑165/14, EU:C:2016:675, see here) to expand the scope of EU law to include social benefits did nothing to displace that analysis.

In Agyarko [2017] UKSC 11 (see here), Lord Reed shed light on Zambrano and associated jurisprudence. His Lordship’s dissection of the key principles led him to conclude that in CS (C‑304/14, EU:C:2016:674, see here) the CJEU focused on situations where the dependent EU citizen would be obliged in practice to leave EU territory altogether. Critically, Elias LJ had hit the nail on the head in Harrison (Jamaica) [2012] EWCA Civ 1736. Therefore, Lord Carnwath explicitly approved Elias LJ’s conclusion that:

  1. … The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality of life or to any particular standard of living.


Please see Part Two.
Please see Part Three.

This article was originally posted here.