January 2014 Zambrano & the Right to Benefits

04/01/2014
In a new judgment, the High Court has considered a challenge to the lawfulness of regulations that exclude claimants whose sole right to reside derives from the decision of the Court of Justice of the European Union in Zambrano, from entitlement to social assistance.

In HC, R (on the application of) v Secretary of State for Work and Pensions & Ors [2013] EWHC 3874 (Admin), the claimant, an Algerian national, had married a British national and had two children with him, both British nationals. After she and the children left the family home due to domestic violence, they were provided with temporary accommodation and small weekly subsistence payments, under section 17 of the Children Act 1989, by Oldham Council.
Following the Zambrano decision, the UK government introduced regulations that had the effect of excluding people whose right to reside arose from the Zambrano doctrine from eligibility for social security benefits, child tax credits and housing assistance.
The claimant challenged the legality of the regulations arguing that they unlawfully discriminated, on grounds of nationality and gender, against Zambrano carers and failed to take into account the best interests of their children. Further, she argued that the regulations breached the public sector equality duty under section 149 of the Equality Act 2010.
 
Mr Justice Supperstone held that whilst the Zambrano doctrine gives third country nationals a derivative right to reside as long as their children need them, it does not give rights analogous to those of EU workers or the self-employed. He noted that there is nothing to suggest that the claimant and her children will be forced to leave the UK or EU if she is not given the entitlement to the social benefits she seeks and went on to hold that Amending Regulations did not directly discriminate against the claimant on grounds of her nationality - as ‘it is immigration status, not nationality, that is the ground for differentiation’.

Any discrimination whether on grounds of nationality or gender, which exists as a result of the Amending Regulations can only be indirect and, in the judgment of Mr Justice Supperstone, can be justified because they -

‘… represent a proportionate means of furthering the legitimate aim of protecting scarce public resources, including from individuals who move to, or remain in, the UK in order to take advantage of its welfare system.’
 
In respect of having regard to the best interests of the children of Zambrano carers, Mr Justice Supperstone held that under the Charter of Fundamental Rights of the European Union there is no general requirement under EU law for Member States to provide parents with a particular level of support, regardless of their right to reside.

Finally, Mr Justice Supperstone held that there was no breach of the public sector equality duty because the relevant Equality Analysis and Equality Statements show that the Defendants were aware of the equality implications of the proposed Amending Regulations. Regard was properly had to countervailing considerations. That being so, it was for the decision maker to determine the weight to be given to the various factors unless the assessment by the decision maker is unreasonable or irrational.

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