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Baumbast (Case C-413/99, EU:C:2002:493), as subsequently applied in Ibrahim (C-310/08, EU:C:2010:80) and Teixeira (C-asad-khan480/08, EU:C:2010:83) did not assist HC because these authorities concerned the interpretation of EU Regulation 1612/68 on the free movement of workers which was contextually different. The unconditional nature of the right of the primary carer derived under Regulation 1612/68, art 12 led HC to argue that once the right of residence is established the need to show a positive right to claim social assistance falls away. She claimed that since Zambrano carers’ residence rights occur without any need for self-sufficiency or limitation these rights must be regarded as attracting benefits identical to habitually resident persons.

HC ran the academic argument that the Supreme Court had a golden opportunity to cure the “hand-to-mouth” nature of citizenship. Consequently, the Court needed to accept that in Ibrahim the CJEU ruled out any basis for a condition of self-sufficiency in the legislation in question, or in the case law and specifically pointed out that the ruling in Baumbast had not been based on a finding of self-sufficiency. However, Lord Carnwath had two difficulties with this proposition. Firstly, the domestic law context was quite different because the rights asserted in those cases were not limited by domestic law. Conversely, in HC’s case the issue was whether the regulations limiting her entitlement to assistance complied with EU law. Secondly, it was not clear-cut that Zambrano residence rights automatically triggered the protection of a right to equal treatment under EU law. The situation begged the question whether the CFR applied to HC’s case at all.

(ii) Discrimination: CFR and ECHR

Lady Hale’s judgment in Patmalniece precluded the application of the TFEU, art 18 to third country nationals. HC invoked the CFR, art 21. However, art 51 limits the CFR’s application to “only when” member states “are implementing Union Law”. Relying on Martínez Sala, HC submitted that the Zambrano principle brings the carer and child “within the scope” of the EU treaties personally or ratione personae. The choice between s 17 support and mainstream welfare benefits was portrayed as a choice between different modes of implementing EU law. Equally, the intervening AIRE Centre questioned the domestic regulation of Zambrano carers’ entitlement to financial assistance under EU law.

The Government disagreed that Martínez Sala – which specifically dealt with EU citizens’ rights – aided HC as it was unrelated to the CFR. Applying the logic in Ymeraga (C-87/12, EU:C:2013:291), it was necessary to show a direct link between the act in question and the implementation of EU law. Since refusing the Ymeraga family did not involve the implementation of EU law, the CFR had no application. Moreover Dano sealed the argument that without any specific requirement or condition of EU law, decisions about the level of non-contributory benefits fall outside the CFR’s scope because the CJEU held that member states are not implementing EU law by prescribing conditions for the grant of special non-contributory cash benefits and the extent of such benefits. Accepting the government’s submissions, Lord Carnwath held that:

  1. … The test is not whether Mrs HC is personally within the scope of EU law in some way. The issue must be judged by reference to the test set by article 51, which is directed to “implementation” of EU law. Once it is determined that EU law does not require more for the children of a Zambrano carer than practical support sufficient to avoid their being obliged to leave the Union, that also sets the limits of what is involved in its implementation.

The UK had the choice to be more generous by “gold-plating” EU law, but that was an option under national law. Ultimately, the point about the regulation of the provision of financial assistance was incorrect.

The case under the ECHR, art 14 was similarly thin because discrimination on the basis of immigration status is a fundamental and accepted part of both EU and national law and cannot on its own give rise to an issue under art 14. The differences between HC’s treatment as a Zambrano carer specifically and the treatment of others only reflected the rules of EU law which produced her Zambrano carer status. Unless allocations are “manifestly without reasonable foundation”, the ECtHR accepts that national authorities primarily control the allocation of public funds in the social security context. Because “benefits tourism” and the burden on the state must be reduced, like Arden LJ it was “impossible” for Lord Carnwath to hold that the objectives underpinning the regulations fell outside the wide margin of discretion allowed to national governments in this field.

(iii) Children Act 1989

The Government’s response to the Zambrano principle relied on s 17 which binds local authorities to promote children’s welfare and, consonant with the duty, promotes their upbringing by their families. Ryder LJ addressed the scope of the duty in R (C) [2016] EWCA Civ 707 and rejected the idea that it was unlawful for the local authority to set financial support by reference to levels of child benefit, or to amounts paid to asylum-seekers, rather than assessing their actual needs. The duty intends to cover a wide range of circumstances.

In HC’s case the duty arose from a responsibility established by EU law but Lord Carnwath held that the allocation of that responsibility, as between central and local government, is a matter of domestic law only. Yet, even as a national responsibility, the importance of the duty remains undiminished. Overall, since judicial review is a “backstop”, Lord Carnwath concurred with Lady Hale’s analysis that consistency of approach between local authorities is clearly desirable and the legislation allows for the provision of national guidance for the duty to be discharged.

Please see Part One.
Please see Part Three.

This article was originally posted here.