R (on the application of HC) v Secretary of State for Work and Pensions [2017] UKSC 73

Mrs HC, an Algerian Zambrano carer of two British children, challenged regulations excluding such carers from mainstream welfare benefits, housing assistance and child benefit. The Supreme Court dismissed her appeal, holding the Zambrano principle requires only practical support sufficient to prevent EU citizen children being forced to leave the Union.

Facts

The appellant, Mrs HC, is an Algerian national who had overstayed her leave to remain in the United Kingdom. She married a British national in 2010 and had two British children by him. Following domestic violence, the relationship ended in late 2012, leaving her dependent on assistance from Oldham City Council under section 17 of the Children Act 1989, which provided temporary housing and approximately £80.50 per week for subsistence. It was accepted that she was a ‘Zambrano carer’ (following Ruiz Zambrano v Office national de l’emploi (Case C-34/09)), with a derivative right of residence under article 20 TFEU because her British citizen children would otherwise be obliged to leave EU territory.

She challenged amendment regulations introduced in November 2012 which excluded Zambrano carers from income-related benefits, child benefit, child tax credit and housing/homelessness assistance, by adding a Zambrano-based right of residence to the list of excluded qualifying rights of residence.

Issues

The Supreme Court considered:

• Whether the Zambrano principle required the state to provide more than bare legal and practical protection against EU citizen children being obliged to leave Union territory.
• Whether, in enacting the amendment regulations, the UK was ‘implementing Union law’ within article 51 of the EU Charter of Fundamental Rights, so as to engage article 21 (non-discrimination).
• Alternatively, whether the regulations involved unjustified discrimination contrary to article 14 of the ECHR, read with article 8 or article 1 of the First Protocol.

Arguments

Appellant

Mr Drabble QC submitted that the amendment regulations contravened the fundamental principle of equal treatment in EU law, embodied in article 21 of the Charter. He argued that the Zambrano right of residence brought Mrs HC within the scope of EU law ratione personae, and that setting the level of support was itself an act of implementation of Union law. He relied on the Baumbast/Ibrahim/Teixeira line of authority to argue that, once a right of residence is established without a self-sufficiency condition, equal treatment in benefits follows. He also invoked article 14 ECHR, asserting discrimination by reference to immigration status or Zambrano carer status.

Respondents

Mr Coppel QC argued that EU law required only protection sufficient to prevent the children being obliged to leave the Union. The amendment regulations did not implement EU law within the meaning of article 51 of the Charter; the limits derived from domestic legislation. Reliance was placed on Ymeraga and Dano to show that determining levels of non-contributory benefits, absent a specific EU requirement, falls outside the scope of the Charter. The differential treatment had reasonable foundation, including reducing costs, encouraging regularisation of status and limiting benefits tourism.

Judgment

The Zambrano principle (Lord Carnwath, with Lord Clarke, Lord Wilson and Lord Sumption agreeing)

Lord Carnwath held that the reasoning in Zambrano turned solely on the risk of EU citizen children being compelled to leave Union territory. The European Court’s subsequent jurisprudence, including Dereci, Rendón Marin and S v Secretary of State for the Home Department, confirmed the ‘exceptional’ and ‘specific’ character of the right. He approved the analysis of Elias LJ in Harrison (Jamaica), namely that the right of residence is not a right to any particular quality of life or standard of living.

The Baumbast line

The cases concerning article 12 of Regulation 1612/68 were distinguishable: they concerned a different domestic statutory context where entitlement turned on whether there was an EU right of residence, and the issue was whether a self-sufficiency condition was implicit. No analogous question arose here, where the limitations were created by domestic legislation, and the assertion that the Zambrano right ‘necessarily triggers’ equal treatment begged the central question.

The Charter

Applying article 51, the test was whether the UK was ‘implementing Union law’. It was not enough that Mrs HC was personally within the scope of EU law, nor that national law was related to EU law. As shown by Ymeraga and Dano, where EU law lays down no conditions for non-contributory benefits, member states acting in this area are not implementing EU law. Once EU law requires no more than practical support sufficient to prevent the children leaving the Union, anything beyond that is ‘gold-plating’ under national law. The Charter therefore did not apply.

The Convention

Assuming article 14 was engaged through the ambit of article 8 or article 1 of the First Protocol, discrimination based on immigration status is an accepted part of EU and national law. Differences arising from Zambrano status merely reflected the law creating that status. In any event, the allocation of limited public funds in welfare is for national authorities, subject only to the ‘manifestly without reasonable foundation’ test (citing R (MA) v Secretary of State for Work and Pensions). The Government’s objectives fell within the wide margin of discretion.

Section 17 Children Act 1989

Lord Carnwath observed that section 17 had emerged as an important aspect of the Government’s response to Zambrano without apparent prior consideration, and emphasised the importance of consistency and possible national guidance.

Lady Hale’s concurring observations

Lady Hale, while agreeing the appeal must be dismissed, expressed concern that policymakers had treated Zambrano carers as ordinary third country nationals without considering the position of their British citizen children. She noted the disadvantages of section 17 support compared with mainstream benefits (discretionary nature, no standard rates, limited challenge by judicial review). She considered it was arguably the administration of section 17, rather than the amendment regulations, that implemented Union law. She doubted the Government’s justifications for exclusion, but concluded that section 17, properly administered with regard to the children’s welfare and the duty under section 11 of the Children Act 2004, could provide adequate support to avoid the children being effectively deprived of their EU citizenship rights.

Implications

The decision confirms that the Zambrano right under article 20 TFEU is narrow and derivative: it protects EU citizen children only against being forced in practice to leave the territory of the Union. It does not require member states to provide a particular level of welfare support beyond what is necessary to achieve that practical effect.

The judgment also clarifies the scope of article 51 of the Charter: a measure is not ‘implementing Union law’ merely because it relates to persons who derive rights from EU law or to a subject matter touched on by EU law. Where EU law imposes no condition on benefit entitlement, domestic rules setting such entitlement fall outside the Charter.

The decision is significant for local authorities, which bear the practical burden of supporting Zambrano carers and their children through section 17 of the Children Act 1989. Both Lord Carnwath and Lady Hale emphasised the desirability of national guidance to promote consistency, and Lady Hale’s observations strongly indicate that local authorities should take a child-focused approach, having regard to section 11 of the Children Act 2004 and the position of these children as British citizens entitled to remain.

The judgment leaves open: the precise level of support required under section 17 in individual cases; whether broader Charter arguments under article 21 could succeed in a case where the Charter does apply; and any future debate as to whether section 17 support is, on the facts, sufficient to prevent the children being effectively obliged to leave the Union.

Verdict: The appeal was dismissed. The amendment regulations excluding Zambrano carers from mainstream non-contributory benefits and housing/homelessness assistance were lawful; the Zambrano principle requires only practical support sufficient to prevent EU citizen children being obliged to leave the Union, the Charter did not apply as the UK was not ‘implementing Union law’, and there was no unjustified discrimination contrary to article 14 ECHR.

Source: R (on the application of HC) v Secretary of State for Work and Pensions [2017] UKSC 73