Zambrano carers: eligibility for welfare benefits and homelessness assistance

R (on the application of HC) v Secretary of State for Work and Pensions [2017] UKSC 73, Lady Hale and Lords Clarke, Wilson, Sumption and Carnwath, 15 November 2017

The claimant was an Algerian national who had married a British national and had two children with him who were both British nationals. The claimant and the children left the family home due to domestic violence.

The claimant's sole right to reside in the UK derived from the ruling in Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265.

The UK government introduced regulations which had the effect of excluding people whose right to reside arose from the Zambrano principle from eligibility to social security benefits, child tax credit and housing assistance (SI 2012/2587, SI 2012/2612 and SI 2006/1294 respectively) – “the 2012 Regulations”.

The claimant challenged the 2012 Regulations on the basis that they were incompatible with the result in Zambrano itself; or, alternatively, were discriminatory in breach of article 21 of the EU Charter of Fundamental Rights; or alternatively breached Article 14 of the ECHR.

The Supreme Court dismissed the appeal and refused to make a reference to the Court of Justice of the European Union:

• The ruling in Zambrano turned solely on the risk of being obliged to leave the territory of the Union and as such it did not throw any light on the right to means-tested benefits.
• EU law did not require more for the children of a Zambrano carer than practical support sufficient to avoid them being obliged to leave the Union.
• Consequently, the claimant could not rely on the EU Charter as the 2012 Regulations were not directed to “implementation” of EU law. Moreover, decisions about the level of non-contributory benefits (social assistance) are not within the scope of the Charter (Dano v Jobcenter Leipzig (Case C-333/13) considered.
• The government’s reasons for not providing welfare benefits to Zambrano carers - reducing “benefits tourism” - fell within the wide margin of discretion allowed to national governments in this field (R (MA) v Secretary of State for Work and Pensions [2016] 1 WLR 4550, para 32 applied).
• Section 17 payments under the Children Act 1989 was an acceptable means to meet EU obligations in respect of children’s needs in Zambrano cases. Hence the allocation of responsibility for that support was an issue of national rather than EU law.

The Court added it would be helpful if local authorities received some form of national guidance on how they should meet their responsibilities to children with Zambrano carers under section 17:

“It must always be remembered that the primary objective is to promote the welfare of the children concerned, including the upbringing of such children by their families. The assessment of need must remain the responsibility of the local authority … but, given that this is a national responsibility, it is clearly desirable that there should be a degree of consistency as between authorities. The legislation allows for the provision of national guidance. Judicial review is available as a backstop, but it is likely to be unsatisfactory for the levels of appropriate support to be left for determination by the individual authorities on a case-by-case basis, subject only to control by the courts by reference to conventional Wednesbury principles” (para 37).

The Supreme Court judgment is available here: R (on the application of HC) v Secretary of State for Work and Pensions [2017] UKSC 73