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(iv) Lady Hale

Gravitating towards a more child-focussed approach, her Ladyship’s judgment struck a more philosophical chord than Lordasad-khan Carnwath’s mechanical dissection of pure law. Rather than adults’ rights, two very young British children’s rights hung in the balance. Being with their mother and having a home were central to remaining in their own country but its officials were more preoccupied with marginalising them by relegating the status of Zambrano carers to that of mere third country nationals. Equally, the misconception was exposed by the fact that the tremors caused by the Zambrano judgment resulted in the amendment of the Immigration (European Economic Area) Regulations 2006 in order to give Zambrano carers the right to live and work in the UK. Somewhat puzzled by the contradictions in the official narrative, Lady Hale observed:

  1. Yet Zambrano carers are not like any other third country nationals. They have British (or other EU citizen) children dependent upon them.

Purported official consultations were inadequate and uncertainty loomed over whether central or local government actually realised that s 17 was the only means for these children to escape destitution. It was not meant to be a long-term substitute for social housing or means-tested benefits. But conveniently in its present form s 17 enables local authorities to provide services such as “accommodation and giving assistance in kind or in cash”. Advantages and disadvantages accompany the flexible provision.

Advantageously, any services provided can be modified to fit the needs of the particular child or family and can supplement, indeed enhance, benefits and services available under alternative legislation. Conversely, in comparison with the benefits and services denied to HC’s children, numerous disadvantages emerged. First, statute allows the local authority to judge when a child is “in need”. Second, the provision of services is discretionary and the statutory duty is a “target duty” rather than a duty owed to any individual child. Third, the absence of standard rates for cash assistance results in risk of inconsistency between authorities. Fourth, cash assistance does not automatically result in entitlement to other assistance, such as free school meals, to which receipt of certain benefits is a passport. Fifth, the local authority’s decision can only be challenged by judicial review which is costly and narrow and is a poor replacement for an appeal to the First-tier Tribunal (Social Entitlement Chamber). Furthermore, the short-term nature of s 17 was further illustrated by the fact that HC’s annual package for accommodation, food and utilities was approximately £11,368.76 and the local authority’s annual budget for s 17 support was £12,000.

To resolve legal problems, in reviewing the situation since 2013, in keeping with the various statutory duties owed under s 17, the Children Act 2004, s 11 and the Education Act 2002, s 175 the local authority must consider (i) the need to promote actively the welfare of the children, (ii) the fact that these children are British, with the right to remain here for the rest of their lives, and (iii) the impact on the proper development of the children which would occur if they were denied a level of support equivalent to their peers which is fixed closer to subsistence rather than being designed to lift children out of poverty.

Without the fallback of s 17, EU law would be left unimplemented. However, the administration of the provision bridged the gap by allowing the children of Zambrano carers to remain in the UK. Her Ladyship opined that if the CFR applied to s 17’s administration, then the possibility arose that the contextual discrimination against these children might fall within art 21. In that scenario, the present justifications would be unimpressive because they were aimed at third country national parents rather than British children.

Particularly, the aim of strengthening immigration control was irrelevant as the children were British and thus had the greatest connection with the UK for the allocation of benefits. The economic aim of saving money was flimsy because responsibility was transferred from one part of Government to another. However, s 17 served to provide these children with what they need and deserve. Overall, whilst the search for superior alternatives was desirable, that fact alone did not put the UK in breach of EU law. Consequently, there was no need for a reference to the CJEU. Albeit somewhat reluctantly, Lady Hale agreed that the appeal had to be dismissed.

Comment

This decision was recently applied in Patel [2017] EWCA Civ 2028, where among other things the decision in Chavez-Vilchez (C-133/15, EU:C:2017:354, see here) was held not to alter the Zambrano doctrine and merely served as a reminder that the Zambrano principle had to be carefully applied focussing on whether the EU citizen child or dependant could remain in the UK in practice rather than in legal theory. The Court of Appeal held that Chavez-Vilchez does not symbolise “any kind of sea-change to the fundamental approach to be taken” and does not diminish the authority of cases such as Harrison and HC’s case which implement Zambrano but pre-date Chavez-Vilchez.

In particular, Irwin LJ used Lord Carnwath’s conclusion on the correctness of Harrison to justify his own approach that the Zambrano principle could not be regarded as a back-door route to residence by non-EU citizen parents. The upshot is that marriage to a British citizen is not an automatic passport for the spouse to remain in the UK. Those without leave to remain who marry a British citizen and have children do so at the risk that they might be compelled to leave the country. Such developments only reconfirm the narrow nature of the substance of rights test. Even so, Lord Carnwath acknowledged that had the CFR been held to apply interesting questions would have arisen under art 21. After all, as Martijn van den Brink has pointed out: “The true importance of the test is not what it has changed so far, but its potential to effect further change.”

Please see Part One.
Please see Part Two.

This article was originally posted here.