Birmingham Law Centre Blog

Birmingham Law Centre’s ground breaking case on interim relief and the application of Zambrano to social security entitlement reaches the High Court for the full Judicial Review hearing on 11 and 12 March 2013.

Asylum support charities, Law Centres, private firms of solicitors and representatives of local authorities across the UK have provided detailed witness statements and Birmingham City Council has been joined as an interested party.

In the mean time, the Upper Tribunal (UT), in a short judgment has overturned the First-tier Tribunal decision after stating that, whilst our client’s circumstances were precarious, she was clearly surviving.  The UT appears to be saying that survival is the benchmark for whether or not a Zambrano carer’s continued stay in the EU is viable or not.

The UT also held (in our view wrongly) that the Zambrano principle only comes into play when the EU child’s departure from the EU is imminent.  Whereas the criterion applied by EU case law is plainly based on an assessment of (i) the degree of the Union child’s dependency on the carer who has been refused a right to reside and (ii) whether the carer is a third country national rather than an EU national such that the EU child will be forced to leave the territory of the EU to accompany the third country national upon whom they are dependent. We will be seeking permission to appeal to the Court of Appeal.

The recent Finnish case of O and S v Maahanmuuttovirasto was used by the UT in support of its conclusion that the principles in Zambrano should not be applied until the claimant’s departure from the EU was imminent.  This misses the point. Subsequent EU case-law (see below), including O and S , shows that the application of the Zambrano test involves distinguishing between those cases where the EU child’s primary carers are non-EU nationals and those cases where one of the carers is an EU national (with a right to reside in the EU).

All but one of these subsequent cases involves an EU as well as non-EU parent of an EU child.  In Pryce v LB Southwark, the Court of Appeal accepted that Zambrano applies where the primary or only carer of an EU child is a third country national.

For Ms Sanneh, the argument of whether she will be forced to remove her EU citizen daughter from the territory of the EU due to economic pressure moves to the High Court as she attempts to force the Secretary of State to provide interim relief pending the outcome of the appeal of the UT’s decision.  The JR will look at the impact of the Habitual Residence Regulations 2012 that came into force from 8 November 2012.  In the wake of these regulations, all payments of social security benefits ceased as the government looked to incorporate Zambrano by accepting (i) the right to reside, (ii) the right to work but (iii) refusing the right to social security benefits.

We say that it is no answer for the Secretary of State to argue that the Zambrano principle does not bite because she (via her daughter) can access emergency s.17 Children Act support (just as it would be no answer for the State to say that the child could be taken into care, as was accepted in DH (Jamaica) and AB (Morocco) v SSHD, para [19]).  To do so is to confuse two different statutory schemes: social security benefits are designed to cover the claimant’s essential living costs (and in the case of Housing Benefit, housing costs) and the provision of emergency support via community care legislation which target emergency and minimal assistance for those in urgent need.

Review of Zambrano Case Law

McCarthy

An application was made by Mrs McCarthy for a residence document under EU law as an EU citizen and her husband (a Jamaican national) applied for a residence permit as the spouse of an EU citizen.  The court said that Zambrano did not apply in this case as Mrs McCarthy she was not obliged to follow her husband abroad and there was nothing which impeded her ability to move and reside freely within the territory of the Member States.

Dereci

In each of the five Dereci cases, non-EU family members of Union citizens wished to live with their families in the EU ( Austria ). The court emphasised that the Zambrano principle applied only in the exceptional circumstances where the children would be forced to leave the EU, and not simply where it would be otherwise desirable for economic reasons or to keep the family together .  Therefore, the EU children did not need the presence of the non-EU family member in order to exercise their EU rights.

Iida

An EU citizen child had moved from her country of origin (Germany) to a second Member State (Austria) with her mother.  Her third country national father, Mr Iida (a national of Japan), applied for a residence permit to continue to live in Germany based on being a family member of a Union citizen (i.e. his daughter) who was residing in Austria. The court concluded that on those facts the decision to refuse a residence permit did not deny the daughter any of her rights as a Union citizen and the Zambrano principle did not apply.

O and S v Maahanmuuttovirasto and Maahnmuuttovirasto v L

Third country nationals had married Finnish nationals and each had a child (EU citizen child).  After divorcing, they remained lawfully resident in Finland.  Both subsequently remarried third country nationals and each had another child.  The court concluded that the refusal to grant a residence permit to the non-EU husbands would not amount to a breach of the Zambrano principle on the basis that (i) the mothers (and primary carers) had a permanent right of residence in Finland and (ii) the applicant fathers were not persons on whom the EU children were legally, financially or emotionally dependent.

Sanade and ors

Here, the Upper Tribunal gave guidance on deportation cases where the family member had been convicted of a criminal offence.  It held that the purpose of the judgment in Zambrano was to grant rights to non-Union parents to prevent them being expelled from the UK or EU to prevent the child’s constructive expulsion from the Union (paras 83-84).  The critical question therefore is whether the child is dependent on the parent being removed for the exercise of his Union right of residence and whether the removal of that parent will deprive the child of the effective exercise of residence in the UK or elsewhere in the Union.

Pryce v LB Southwark

Ms Pryce, a Jamaican national, was in the UK unlawfully. She has two dependent British citizen children. On her application for homelessness assistance, the council decided that she was not eligible as a person subject to immigration control.  That decision was upheld on review and Ms Pryce appealed unsuccessfully to the county court.  The court allowed a second appeal.  Because of her children’s need for her to remain in the UK as their carer, Ms Pryce had a right to reside in the UK under Article 20 of the EU Treaty as explained by the EUCJ in the case of Zambrano .  Hence she was eligible for housing assistance.

DH (Jamaica) and AB (Morocco) v SSHD

The Secretary of State had ordered that each of the appellants should be deported as each had committed a serious criminal offence. The appellants’ who were married to UK nationals with children, sought to rely on Zambrano and that this would affect any proportionality assessment which has to be carried out when a court has to decide whether depriving a non-EU national of the right to reside in Great Britain is compatible with respect for EU and Convention rights.  The Court held that the Zambrano principle does not cover anything short of a situation where the EU citizen is in practice being forced to leave the territory of the EU.

Stephen Knafler QC and Desmond Rutledge both of Garden Court Chambers will represent Ms Sanneh in the High Court.

Please contact Michael Bates at Birmingham Law Centre for further information:

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The campaign to save Birmingham Law Centre began in earnest on Thursday 3 January 2013.  Staff at the law centre organised a lobby of the full Council meeting on 8 January ahead of a meeting arranged between the law centre and Sir Albert Bore, Leader of the Council set for Friday 11 January.  The lobby was trailed by an article in the .

ITV Central News covered the event outside the Council House.  We also managed to get a client of ours to ask a question in the Council chamber but there was a categorical refusal to accept that the law centre should be funded by the Council.  Albert Bore stated that the City Council’s neighbourhood office network plus CAB would sufficiently meet the needs of Birmingham citizens.   BBC online covered the meeting.

Stories have also subsequently appeared in the Law Society Gazette and the Lawyer Magazine as well as our friends at Birmingham Against the Cuts .

by Claudia Deans and Lloyd Burton

A recent study by the Trades Union Congress (TUC) has highlighted misconceptions which are being propagated by the government, leading to the creation of so called ‘media myths’ regarding Social Security claimants, in advance of the run up to the now approved Welfare Benefits Uprating Bill [1] .

The TUC poll revealed the publics misconceptions of the welfare state, and more specifically, the proportion of the welfare budget which is spent on Job Seekers Allowance, the benefit received by the unemployed. It emerged in the poll that there was a misconception of 41% being the welfare budget expenditure figure received by the unemployed, when in reality, it is a mere 3% - the remainder being spent on those incapable of work, their carers and the retired.

Similarly, it is also falsely believed that some 27% of welfare expenditure is claimed fraudulently, when in fact, the figure is 0.7%. There are also misconceptions about the amount of benefit which families receive. When polled as to how much Job Seekers Allowance a couple with two school age children would receive weekly, respondents cited a median figure of £147.00, some 30% higher than the £111.45, that they would actually receive.

The Welfare Benefits Uprating Bill was approved on the 8 ^th January, capping rises to most Social Security benefits to 1% over the next three years, in the wake of war cries from Conservative politicians that the UK was awash with “scroungers” and “shirkers”, and after the party had posted an online advert which asked the electorate whether the government should support “hard working families or people who won’t work” [2].

However, the grim reality and implications of capping social security payments are that working families will be disproportionately affected, due to the cap including Child Benefit and Tax Credit payments. For example, the 1% cap will cost a lone parent nurse with two children £424 a year, and a junior army NCO with three children, earning £470 a week, losing a total of £552 annually [3] .

Indeed, a further analysis by the Institute for Fiscal Studies (IFS) on the implications of increasing benefits by less than inflation concludes that seven million families - half of Britain’s working households - will now be worse off by an average of £165 per year [4].

With such drastic reductions affecting families of working households, it is difficult to comprehend quite how it is that Grant Shapps, the Conservative Party Chairman, could convincingly write in Monday’s ‘I’ newspaper that “We need to make sure that people are progressively better off in work, than they would be on welfare. In short, we need fairness. Our welfare reforms are a stepping-stone to a fairer society” [5].

The truth of the matter is that the Welfare Benefits Uprating Bill’s title was as misleading as it was inaccurately misrepresented to the public. The so called ‘Striver’s Tax’ is arguably an attempt by the Coalition Government to pay for a welfare bill that is currently £13bn more than was originally planned.

An overspend which has prompted the Shadow Work and Pensions Secretary, Liam Byrne, to suggest has been prompted by governmental policies which have given rise to a flat-lining economy, and rising long term unemployment [6] .

But for once, perhaps it is not only politicians who are at fault in the Strivers Tax debacle. Myths and misconceptions about the welfare state, whether propagated by the government, the media (or both), regarding whom in society are actually receiving benefits, are rife amidst the general public.

It is therefore somewhat ironic that subjective judgements about our social security system are contributing to reductions in the household incomes of working families, who are neither scroungers, nor indeed, shirkers.

In any event the stepping stones to an allegedly ‘fairer society’ have now been firmly embedded in the river, but it is unlikely that the elderly, infirm or the disabled will be able to leap-frog between them.

Let us hope that society’s able bodied employees are still better placed to make that jump – as should they slip, they might very well discover that the fast evaporating under current of social justice, has now all but deserted them…

REFERENCES

[1] Grice, A (2013) “Ministers are using dirty tricks to turn public against claimants”, ‘I’ Newspaper, 04.01.13.

[2] Grice, A (2013) “Top Tories fear a return to ‘nasty party’ image”, ‘I’ Newspaper, 08.01.13.

[3] Cassidy, S and Duggan, O (2013) “Welfare groups says children will suffer as parents struggle with cuts”, ‘I’ Newspaper, 07.01.13.

[4] Chu, B and Morris, N (2013) “Benefits cut ‘will hurt seven million families’”, ‘I’ Newspaper, 08.01.13.

[5] Shapps, G “Welfare reform means work will always pay”, ‘I’ Newspaper, 07.01.13.

[6] Chu, B and Morris, N (2013) “Benefits cut ‘will hurt seven million families’”, ‘I’ Newspaper, 08.01.13.

Local man, Nigel Simons, fears closure of Birmingham Law Centre would have left his elderly mother languishing in hospital without access to services that kept her in her home.

Last year, Nigel’s mother suffered a broken femur that needed surgery.  She also has severe osteoporosis.  After spending many months recuperating in hospital, Mrs Simons was told she would be discharged.  However, she was too scared to leave as she didn’t know how she would be able to look after herself at home.  In desperation, Nigel turned to local advice charity, Birmingham Law Centre, who were able to advise him on what help his mother could get from social services.  As a result, Mrs Simons is now living back at home and has carers coming in four times a day.

‘I was so relieved when the law centre told me that my mother could have some help at home,’ said Nigel.  ‘The hospital were desperate to get her to leave and she was just too frightened to go home on her own.  She had nowhere else to go.  The law centre very quickly helped sort things out.’

Unfortunately, government cuts to legal aid will soon mean a massive reduction in income for Birmingham Law Centre.  Without much needed funding from the local authority, the law centre is in a worse position than almost all other law centres around the country.  For both of these reasons, the law centre is facing imminent closure.

This means that 2000 Birmingham citizens per year will lose out on the kind of legal advice that could keep them in their home, help them appeal complex benefits decisions or access help from social services.  The law centre also advises people in debt or who have lost their job and this advice is always free.

Legal adviser at the law centre, Michael Bates, said, ‘we were able to advise Nigel’s mother because she qualifies for legal aid.  Contacting Birmingham City Council to make sure the right care package was in place is something we do on a regular basis.  But with the law centre facing closure, who will vulnerable clients such as Mrs Simons turn to?’

Birmingham Law Centre is facing a very bleak future and may soon have to close.  As with every law centre, we are having to deal with a massive reduction to our income due to the government’s legal aid cuts.  However, unlike most law centres, we receive no funding from our local authority.

We are meeting with the leader of Birmingham City Council, Albert Bore, next week to ask for help and to remind him that well supported and sustainable law centres are proven to relieve the burden on local authority funding by working to relieve poverty and social injustice.

At a time when increasing numbers of people are left with nowhere to turn, Birmingham Law Centre is in danger of being unable to help.

Please sign our online petition:

http://www.ipetitions.com/petition/save-birmingham-law-centre/?utm_medium=email&utm_source=system&utm_campaign=Send%2Bto%2BFriend

We would also like to ask all of our friends to join us on Tuesday 8 January at 1.30pm outside the Council House as we lobby the full meeting of councillors to save Birmingham Law Centre.  We have asked to put a question directly to the meeting.

Thanks for your support.

By Lloyd Burton

An article taken from the November/December issue of The Adviser Journal, by Housing Solicitor Mark Robinson and entitled “Forgive Not Our Trespassers”, provides an interesting synopsis of new laws, in force from 1 September 2012 which seeks to prohibit squatting, and arguably heralds a return to the bygone days of vagrancy laws, which imprisoned and fined the homeless.

The legislation is governed by Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, although there are also additional revisions to the Police and Criminal Evidence Act - Subsection (8) amends Section 17, to enhance police powers to access properties to clear squatters from residential dwellings.

There are some loopholes to the legislation - for example, S.144 only applies to squatters who were trespassers at the time of entry to a residential dwelling - but not when a guest of an occupier.

Moreover, S.144 does not apply to commercial properties at all, and it does not matter if the squatters adapt the property for residential use after accessing a commercial dwelling.

Robinson also notes that whilst police certainly do have enhanced power of entry to residential dwellings which are being used as squats, they are only permitted to remove those squatters living within the dwelling, but not their guests, potentially making it difficult to totally clear squatted residential dwellings legally.

However, S.144 does state that offenders apprehended squatting in a residential dwelling are liable to conviction of imprisonment for a term not exceeding 51 weeks, or a fine not exceeding Level Five on the standard scale (or both).

Police do not have powers of entry under S.144 to enter and evict people who are squatting commercial dwellings, and as a consequence Robinson makes the point that S.144 is likely to result in an increase in squatting in commercial dwellings generally.

In our experience, individuals have traditionally squatted as a desperate alternative to street homelessness, due to life course circumstance and poverty, doubtless exacerbated by the acute housing shortage.

It is perhaps regrettable that the law was not amended to enable the courts to expedite eviction procedures against squatters, possibly giving those squatting a short notice period to vacate a respective dwelling or face eviction by the police, rather than to simply criminalise individuals for squatting, and fining and/or potentially sending them to prison for nigh on a year.

This is especially the case when squatting is taken in context with the recession, the dismantling of the welfare state, and the huge surge in unemployment and associated homelessness.

By Dave Stamp - ASIRT (Originally posted on the ASIRT Blog )

It was with great horror and deep sadness that we read of the deaths of Mrs G and her baby son, recognised as  refugees and then left in destitution as Mrs G struggled to access the benefit payments to which she was legally entitled, having had her subsistence payments from the UK Border Agency stopped.

Tragically, the bureaucratic morass in which Mrs G found herself is all too typical. The tragic irony is that, for many people who have survived the indignities of the asylum system, the point at which they become entitled to mainstream welfare support is the point at which they are, once again, plunged into abject poverty and despair.

ASIRT and Birmingham Law Centre are aware of numerous examples of cases in which people granted status and the right to remain in the UK have their UKBA support stopped, while obstacle after obstacle is placed in the way of their access to benefits. Research carried out by BLC suggests that the application process for Jobseekers Allowance typically takes 38 working days from the date of application – almost 2 months.

Numerous explanations/excuses are routinely given for an inability to speed this process up, including most commonly an inability to make payments until the claimant has been awarded a National Insurance Number. This is simply untrue, since Section 1 (1B) of the Social Security Administration Act 1992 enables Jobcentre Plus staff to pay benefits, provided the application is accompanied by sufficient evidence of identity and entitlement- such as a Home Office status document granting Leave to Remain.

Yet even if this were not the case, it is impossible to identify  any immutable law of nature either preventing the allocation of a National Insurance Number to claimants at the same time as Leave to Remain in the UK is granted, or a joined up and cohesive approach to individuals’ support arrangements between the UK Border Agency and the Department for Work and Pensions. Under the present system, UKBA support arrangements are terminated 28 days after the grant of refugee status, irrespective of  whether or not alternative support arrangements have been out in place.  Typically, internal delays both within the UK Border Agency and the office of the applicant’s solicitor means that the successful client will not be notified or have evidence of the grant of status for two weeks or so, severely curtailing the time available to the client to arrange alternatives.

Previously, asylum seekers recognised as refugees could get advice and assistance about employment opportunities, housing options and welfare rights from the Refugee Integration and Employment Service. This service no longer exists, following funding cuts.

Evidence suggests that access to advocacy and appropriate legal representation makes a significant difference. Again, BLC’s research indicates that applicants’ claims for welfare benefits are processed and paid into clients’ bank accounts within seven days of the initiation of a pre-action protocol, threatening a Judicial Review of the DWP’s unlawful withholding of payments.

While it is plainly an unsatisfactory state of affairs if JR has effectively become the default remedy to a situation in which applicants for welfare benefits are routinely left in a state of abject poverty, the still more troubling fact is that, from April 2013, cuts to the provision of Legal Aid will render access to competent advocacy and legal support  more difficult than ever.

The grim and impoverished circumstances which contributed so significantly to the deaths of Mrs G and her baby son are sadly all too likely to be experienced by countless other families in the years to come.

It was with great sadness that we read the story of the successful asylum seeker and her young son, starved to death because their route out of destitution had been blocked by bureaucratic delay (reported in Inside Housing, 5 October 2012).  This brought back memories of the pioneering project we set up in Birmingham in order to avoid such a tragedy.

At the end of 2009 it had been highlighted to us by our friends at ASIRT, RESTORE, Red Cross, Refugee Council and others that many asylum seekers who had been granted refugee status were being plunged straight back into destitution on the basis that their claims to benefits were not being processed quickly enough.  The most popular excuse used by the Jobcentre Plus office dealing with applications was that the claimant had no National Insurance Number (NINO) and could not be awarded benefits until they had one.

We knew that this was simply untrue and set about devising a way of combating this problem and unblocking these administrative delays to benefit claims.  The first response was to tell the Jobcentre Plus that the idea of not being able to get benefit without a NINO was nonsense; the second response was to make use of the power that the Secretary of State has to make interim payments of benefit; and the third was to threaten Judicial Review if we were being ignored.

Benefits can be paid without a NINO being allocated.  An application for a NINO is made automatically when you make your application for JSA, IS, ESA, Pension Credit.  There will usually be an identity interview as part of the process of your NINO application.  However this can take up to six weeks and in some cases longer.  It is fair enough that there should be an administrative system in place to ensure as smooth an application and benefit payment process as possible.  It is also fair enough that all of us should be required to have a unique reference number given to us for this system to work: the so-called National Insurance Number requirement.  But what is not fair is to expect that this be the only way in which benefits can be paid, especially if you don’t yet have a NINO.

Fortunately, the law makes provision for this under Section 1 (1B) of the Social Security (Administration) Act 1992 .  You can receive benefit even if you have applied for but not yet been allocated a number, as long as your application has been accompanied by sufficient evidence of identity.  A freshly minted residence permit granting leave to remain is precisely the kind of evidence that will be sufficient in these circumstances.

Persuading the Jobcentre Plus of this fact was only achieved by pointing it out in writing and requesting an interim payment whilst they made up their mind.  The message had not filtered through to the front line and poorly trained telephone staff were simply unable or unwilling to help.

If this request was not answered in 7 days then a pre-action letter threatening Judicial Review was sent to the DWP solicitors and in every case that we have done this, the problem has been resolved and benefit put into payment within 7 days.

The table below shows the typical action taken and timeline of a reasonably straightforward JSA application for a single person, assisted by the referral agency for stages 1 and 2 and referred to BLC for stage 3 or 4:

Stage 1	Day 1	Indefinite Leave to Remain granted.
	Day 5	ILR received.
Stage 2	Day 6	Application for JSA by telephone.
	Day 10	Work focused interview at Jobcentre; hand over of identity and HO docs; application for NINO (this is automatic with JSA application).
	Day 20	NINO identity interview appointment letter received.
Stage 3	Day 24	Interim Payment letter sent.
Stage 4	Day 31	Pre-action JR letter sent.
	Day 35	Decision on entitlement to JSA made.
	Day 38	JSA paid and received in bank.

Between October 2009 and March 2010 when we first evaluated this project, we had 20 clients referred to us by ASIRT, RESTORE and Red Cross.  We threatened Judicial Review in 5 cases and sent pre-action letters.  The DWP solicitors co-ordinated a very quick response in each case and benefit was paid within days.  The other cases concluded successfully within 7 days of the interim payment letter being sent.

We have continued to use this very effective mechanism for unblocking administrative delays and have done so for over 100 clients.  We think this is a successful example of local agencies working together and of an imaginative use of strategic litigation to obtain results that change lives and avoid tragedies.

Please contact us if you want further information on interim payments and Judicial Review:

By Michael Bates

In March this year, ‘Alison’, aged 19, came to see us at the law centre.  She was referred to us by Birmingham and Solihull Women’s Aid who had accommodated her in one of their refuges on the basis of her homeless application to Birmingham City Council.  The Council had accepted the full homeless duty to the claimant on the basis she was homeless and in priority need.  Alison had moved in to the refuge on 30 November 2011 and had applied for Jobseekers’ Allowance but it had not been put into payment.  She was desperate; had not received any benefits for 4 month; and had been surviving on food parcels and hand-outs from the refuge.

Alison’s relationship with her mother had always been uneasy and finally broke down completely in early October 2011.  She was kicked out of the family home and has not returned since.  It became clear that the JSA application had been refused on the basis that her estranged mother was still receiving Child Benefit for her.  Indeed, Alison’s mother had continued to receive Child Benefit without a break despite the fact that Alison had left school 12 months before leaving home and had worked in a call centre for 10 months.  This was full time paid work for which she paid tax and national insurance.

Despite the fact that the DWP could very easily have cross referenced her tax and national insurance payments as evidence of her Mother’s fraud, they told Alison it was her responsibility to contact the Child Benefit in order to resolve the problem of the conflicting benefits claims.  Child Benefit then of course refused to deal with Alison on the basis of the Data Protection Act.  She was stuck in a loop unable to remove the obstacle to her entitlement to JSA and the DWP were unwilling to help either.

On the basis that matters were clearly urgent, we decided to issue the DWP solicitors with an immediate pre-action letter threatening Judicial Review.  This triggered a very quick response from local DWP managers, resulting in a counter payment being issued within 7 days.  As a solicitor agency with a legal aid contract, we are able to undertake Judicial Review work.  We have extensive experience of challenges in the High Court and, whilst it was always unlikely that this case would end up being litigated, it was never an empty threat and we were prepared to go to court if necessary.  Due to the changes wrought on the legal aid scheme from April by LASPO, this work will be impossible.  Welfare Benefits work has been taken out of the scope of legal aid and we will no longer be able to assist clients like Alison.

In the weeks after Alison’s benefits were put into payment, she came to volunteer with us at the law centre.  Within a month she had been offered a property and moved out of the refuge.  A month after that she had asked us for a reference for the job she had just been offered.  This is a good news story and such a positive outcome for our client.  We are clearly very proud of the work we did to help Alison but we are equally angry that funding for this kind of case will cease to exist from April leaving us unable to help clients like Alison and at a time when welfare reform and the introduction of Universal Credit are likely to create problems that will only increase the need for legal advice.

By Michael Bates