Zambrano and Income Support: High Court Judge scratches head
By Michael Bates
Perplexity in the High Court on how to apply Zambrano principles as interim relief JR – Sanneh v Secretary of State for Work and Pensions – is refused
Birmingham Law Centre’s groundbreaking Income Support case continues onwards to the Upper Tribunal now that permission to appeal has been granted to the DWP. In the mean time, however, the High Court has refused permission for a Judicial Review of the decision to suspend our client’s payments of benefit pending the outcome of the Secretary of State’s appeal.
Back in August last year we applied for Interim Payments of Income Support prior to any decision on entitlement. This was on the basis that our client was experiencing hardship and that her daughter, an EU citizen, was being prevented from enjoying the substance of her rights as a citizen of the union and would (due to economic pressure) be forced to leave the territory of the EU. Please see our previous blog posts here and here for details.
The First-tier Tribunal appeal was heard on 28 November last year and the Tribunal Judge agreed with the contention that our client came within the principles of the Zambrano judgement. The effect of the statutory provisions excluding her from mainstream benefits created a situation where her stay in the UK would become untenable. As her daughter would have to accompany her abroad, this amounted to denying her daughter the enjoyment of the substance of her rights as a union citizen and therefore breached EU law following the landmark ruling in Zambrano . The DWP have now lodged an appeal with the Upper Tribunal which we hope will be expedited.
It was clear to us that the claim for Income Support would be resisted and that the proper route to a sustainable challenge was through the statutory appeal process (ie, the tribunal). However, an early decision by the High Court on the lawfulness of refusing Interim Payments would perhaps give us an indication as to how Zambrano principles would be interpreted by the Courts. Unfortunately, the High Court has decided not to help settle how Zambrano should be applied and, in an interesting judgement, HHJ Purle said that:
‘the precise impact of Zambrano has had a number of us judges scratching our heads and the right is not clearly defined.’
The Secretary of State’s arguments that, ‘ Zambrano is not a right to benefits’, and that any risk to an EU child leaving the territory of the EU must be immediate, seemed to be persuasive. Our argument has always been that it is the effect of the national measure as opposed to the measure itself that is of fundamental importance and that the lack of means would sooner or later lead to a situation where our client would be forced to leave the UK. Indeed, it was this more nuanced approach that was taken by the First-tier Tribunal.
The case before the High Court changed character as time had passed. The claim for Interim Payments gave way to a claim against the Secretary of State’s decision to suspend benefit whilst he considered an appeal to the Upper Tribunal: a subtle but important difference. Our client has recently lost the Child Tax Credit that she had been receiving and is now being housed in emergency accommodation arranged for her by Birmingham Children’s Services. She currently has an income of £56.53 per week that is not being topped up by Birmingham. By anyone’s standards, this is hardship and has an undeniably detrimental effect on her and her daughter. However, the Judge held that he would only take into account the circumstances pertaining at the time of the decision to suspend payment of benefit, when she was receiving Child Tax Credit. The Judge also made reference to the Secretary of State’s offer to reconsider the suspension in light of these changed circumstances.
Of course, it was never for the High Court to decide the substance of the claim for Income Support but the Judge had to look at whether we had a strong enough case to challenge the decision to suspend payment of the the award of Income Support made by the tribunal and so to properly assess the balance of convenience in order to grant interim relief. He decided that our case did not overcome the first hurdle and that it was not sufficiently arguable stating that:
‘Given that the Claimant was living sustainably though not lavishly at the time the decision to suspend benefit was made, it seems to me that the potential challenge to the letter of 15 December does not get off the ground.’
We believe that our argument that, on the basis of Factortame , our client’s daughter’s EU rights should be effectively safeguarded has not been given sufficient weight and we are actively considering an appeal to the Court of Appeal.
The Claimant was represented by Desmond Rutledge of Garden Court Chanbers.