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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

27 JAN 2014

R (On the Application of HC) v Secretary of State for Work and Pensions and Others [2013] EWHC 3874 (Admin); (2014) PLLR 003

Immigration - Benefits - Zambrano - Residence

A third party national whose residence rights arose from his/her being the parent/carer to children who were EU citizens had no right to welfare benefits and housing.

6 December 2013

Administrative Court

Supperstone J

(1)        The Claimant, HC, is an Algerian national who has been in the UK since 2008. She initially entered on a six-month visitors' visa, but unlawfully overstayed thereafter. In 2010, HC married a British national and they subsequently had two children in the UK. Whilst pregnant with her second child, HC suffered from domestic abuse. She left her husband in October 2012 and approached Oldham County Council for assistance on 30 November 2012. At first, assistance was not provided, but subsequently, limited temporary housing and financial assistance was provided under the Children Act 1989.

(2)        By these proceedings, the Claimant challenged three statutory instruments, which had the effect of denying her access to welfare benefits and housing. The instruments (‘the Regulations') challenged were:

(a)        The Social Security (Habitual Residence) (Amendment) Regulations 2012;

(b)        The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012; and

(c)        The Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012.

The primary issue was whether these Regulations unlawfully discriminated on various grounds, or were incompatible with EU law.

(3)        In summary, the Claimant argued that as the European Court of Justice in Ruiz Zambrano v Office National de L'Emploi [2012] QB 265 (‘Zambrano') determined that the parent of an EU national child, who is themselves a third country national upon whom the minor child is dependent, has a right of residence in the child's state of nationality, and a right to work to support the child. Thus, the Claimant, argued that she had a right to work and reside in the UK, as a result of her children being EU citizens.

(4)        The purpose of the challenged regulations was to exclude persons from eligibility where their rights of residence arose from the Zambrano doctrine.

(5)        The Claimant alleged that this undermined the practical effect of the Zambrano doctrine, and unlawfully discriminated against Zambrano carers and their EU national children. The Claimant argued that the discrimination breached her and her children's rights under Article 18 of The Treaty on the Functioning of the European Union and Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter'). It was argued that a child's status as an EU citizen encompassed rights to reside on equal terms to other resident children who are EU citizens. Blanket exclusion from eligibility for all social security and welfare benefits was contrary to the prohibition on the grounds of nationality, as per Article 18.

(6)        It was further alleged that the Regulations amounted to sex discrimination, as the Claimant was excluded from in-work and out of work benefits which would make it easier for her, as a single mother, to join the workforce and benefit through tax credits. The claim as to discrimination on the basis of sex discrimination was pursued on the basis of a failure to comply with a public sector equality duty (‘PSED').

(7)        HELD: The Court held that the Claimant had failed to appreciate the narrow scope of Zambrano rights. The case was pursued on the assumption that the Claimant had such rights, whilst the Defendants did not accept that to be the case.

(8)        As a general rule, third country nationals are not entitled to claim social benefits. The Claimant had no direct right to be in the UK, and did not have rights analogous to those of EU workers or self-employed individuals. The Court held that Zambrano did not confer a right to social benefits.

(9)        The Court also rejected the claim of discrimination on the grounds of nationality, referring to the case of ONAFTS v Ahmed (C-45/12, Judgment of 13 June 2013), in which it was held that a third country national could not rely upon the prohibition against discrimination on nationality grounds, even where she had been granted a right of residence in an EU Member State.

(10)     The Court found that it was immigration status, not nationality, which was the basis for the differentiation. The Regulations were framed on the basis of residence, not nationality. As such, any discrimination could only be indirect. The test was thus whether the measures were ‘manifestly without reasonable foundation' (Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1545, per Baroness Hale at paras 15-16). The Regulations were held to represent a proportionate means of pursuing a legitimate aim of protecting scarce resources.

(11)     The Court rejected that there had been discrimination to the Claimant's children, as the Regulations did not apply directly to them, but to the claimant of the benefits, who was the Claimant. The Court concluded in relation to ground a, stating that the Regulations did not discriminate against the Claimant or her children, nor breach the European Law.

(12)     The Court rejected the claim that contrary to articles 24 and 34 of the Charter, the Defendant failed to take into account the implications for the best interests of the children of Zambrano carers. There was no general requirement under EU law requiring parents to be provided with a particular level of support, regardless of their right to reside. Article 34 created no general entitlement to social security or welfare benefits. The Claimant had failed to demonstrate that Articles of the Charter had been infringed.

(13)     In this regard, a safety net was provided by section 17 of the Children Act 1989, meaning that there was no infringement to human dignity (article 1). There was an insufficient degree of suffering to justify a claim of an infringement to a person's integrity (article 3). There was also no obligation to provide jobseekers allowance or other benefits in order to protect an individual's right to a private and family life (article 7). Ground b was thus held to have failed.

(14)     The Court criticised the claim on the basis of the PSED as the Regulations were only intended to maintain the status quo for third party nationals. There was therefore no requirement for careful analysis of their impact. Nonetheless, the Defendants had considered who would be affected, and recognised the differential impact on lone parents. A justification for that impact had been provided. Regard had been had to relevant factors and, given this, it was appropriate for the decision-maker to determine the weight to be afforded to such considerations. The Claimant was thus held not to have made out a breach of the public sector equality duty.

(15)     The claim was thus held to fail.

Claim dismissed

Key paragraphs

[34] - Narrow scope.

[35] - General rule.

[42] - No right social benefits

[43] - Ahmed.

[48] - Immigration status.

[50] - Indirect.

[59] - Proportionate. 

[68] - No discrimination or breach ECHR.

[72] - Ground b.

[75] - Justified differential impact.

[84] - PSED.

[85] - Conclusion. 

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