Zambrano and Income Support: update on Sanneh v SSWP and recent Zambrano case law
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: