On 21 and 22 Jun 2017, the Supreme Court heard HC’s appeal against the Court of Appeal’s Jones_Jjudgment ([2015] EWCA Civ 49) that Zambrano carers are not entitled to non-contributory social welfare benefits on the same basis as EU citizens, and are only entitled to social assistance on the terms granted to third country nationals.

HC is the Algerian mother of two British citizen children, and the survivor of domestic abuse suffered in the course of her marriage to the children’s British father. She has a right to reside in the UK as the Zambrano carer of her children – i.e. as the third country national carer of her EU citizen children, her presence being required for her EU citizen children to enjoy the rights of EU citizenship. She and the children are currently accommodated by Oldham Council under the Children Act 1989, s 17, and they receive subsistence and utilities support.

Under English law, Zambrano carers are not “habitually resident” in the UK and are thereby disqualified from receiving income-related benefits, including income support, income based jobseekers’ allowance, income-related employment and support allowance, state pension credit, housing benefit, council tax benefit, child benefit and child tax credit. That position is equivalent to other third country nationals’ entitlement to benefits.

The Court of Appeal’s position, in a judgment given by Arden LJ, was that the current entitlements for Zambrano carers are lawful. HC had submitted that her exclusion from entitlement (by three statutory instruments) (i) involved unlawful discrimination against her and/or her children; (ii) breached the EU Charter, arts 24 and 34 (requiring equal treatment); and (iii) breached the PSED, as there was insufficient recognition of the effects on women and children in the defendants’ equality analysis and statements. The Court of Appeal upheld Supperstone J’s judgment at first instance which had dismissed all three grounds. It found that only EU citizens (and not a third country national like a Zambrano carer) can rely on the nationality non-discrimination principle and the right to equal treatment. In any event, discrimination such as there is in the entitlement to benefits is not nationality discrimination but is indirect discrimination on the basis of immigration status, which can be justified. ECHR, art 14 is not violated because there are clear policy reasons for making distinctions between Zambrano carers and others, for the same reasons as justify the indirect discrimination. The Secretary of State had complied with the PSED because all that the Regulations did was to return the entitlement of Zambrano carers to benefits to what it had been before the CJEU judgment triggering the right to reside, and therefore the Regulations did not cause a change in policy.

Overall, the Court of Appeal found that the UK must pay Zambrano carers such amount as will enable them to support themselves in order to be the carer for the EU citizen child within the EU but, subject to that, may determine to pay social assistance to them on some different basis from the basis applied to EU nationals themselves.

The issues for the Supreme Court were (a) whether those three statutory instruments are (as the Court of Appeal found) lawful, or whether they are discriminatory under EU law or the ECHR; and (b) whether a preliminary reference should be made. Judgment is awaited.