![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sanneh & Ors v Secretary of State for Work and Pensions [2015] EWCA Civ 49 (10 February 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/49.html Cite as: [2015] Imm AR 669, [2015] HLR 27, [2015] WLR(D) 61, [2015] EWCA Civ 49, [2015] 3 WLR 1867, (2015) 18 CCL Rep 5, [2016] QB 455, [2015] 2 CMLR 27 |
[New search] [View without highlighting] [Printable RTF version] [Buy ICLR report: [2015] 3 WLR 1867] [View ICLR summary: [2015] WLR(D) 61] [Buy ICLR report: [2016] QB 455] [Help]
B5/2013/2872 + C1/2014/0039 |
ON APPEAL FROM
(1) The Upper Tribunal
(Administrative Appeals Chamber)
Judge Jacobs
[2013] UKUT 490 (AAC)
(2) Croydon County Court
His Honour Judge Ellis
3CR02096
(3) Birmingham Civil Justice Centre
His Honour Judge McKenna
BM30027A
(4) Queen's Bench Division
(Administrative Court)
Mr Justice Supperstone
Royal Courts of Justice Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE ELIAS
and
LORD JUSTICE BURNETT
____________________
(1) Sanneh |
Appellant |
|
- and - |
||
Secretary of State for Work and Pensions |
Respondent |
|
(2) Scott |
Appellant |
|
- and - |
||
London Borough of Croydon |
Respondent |
|
(3) Birmingham City Council |
Appellant |
|
- and - |
||
Merali & Ors |
Respondents |
|
(4) R o/a of HC |
Appellant |
|
- and - |
||
Secretary of State for Work and Pensions & Ors Oldham Council |
Respondents Interested Party |
|
AIRE Centre Intervener in all 4 appeals |
Intervener |
|
Secretary of State for Communities and Local Government |
Intervener |
|
Intervener in (1) Sanneh (2) Scott (3) Merali |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Stephen Knafler QC, Mr Desmond Rutledge and Mr Ali Bandegani (instructed by Coventry Law Centre) for the Appellant in Sanneh
Mr Jason Coppel QC and Ms Amy Rogers (instructed by Treasury Solicitors) for the Respondent in Sanneh
(2)
Mr Toby Vanhegan (instructed by Croydon and Sutton Law Centre) for the Appellant in Scott
Mr David Lintott (instructed by Wragge Lawrence Graham & Co LLP) for the Respondent in Scott
(3)
Mr Christopher Baker and Mr Sam Madge-Wyld (instructed by Birmingham City Council Legal Services) for the Appellants in Merali & Ors
Mr Lindsay Johnson (instructed by Bhatia Best) for the Respondents in Merali & Ors
(4)
Mr Richard Drabble QC and Mr Ranjiv Khubber (instructed by Platt Halpern Solicitors) for the Appellant in HC
Mr Jason Coppel QC and Ms Amy Rogers (instructed by Treasury Solicitors and by the Solicitors to Her Majesty's Commissioners for Revenue and Customs) for the Respondents in HC
Mr Charles Banner and Mr Matthew Moriarty (instructed by Herbert Smith Freehills) for the Intervener (AIRE Centre)
Mr Jason Coppel QC and Ms Amy Rogers (instructed by Treasury Solicitors) for the Intervener (Secretary of State for Communities and Local Government)
Hearing dates: 4-7 November 2014
____________________
Crown Copyright ©
Lady Justice Arden:
SOME KEY PRINCIPLES AND TERMS USED IN THIS JUDGMENT
"Article 20
1. Citizenship of the European Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
a) The right to move and reside freely within the territory of the Member States….
Article 21
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect."
CURRENT BENEFIT ENTITLEMENT OF ZAMBRANO CARERS UNDER ENGLISH LAW
a) the Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587) (the "DWP Regulations") brought forward by the Department for Work and Pensions;
b) the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 (SI 2012/2588), (the "DCLG Regulations") brought forward by the Department for Communities and Local Government; and
c) the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012 (SI 2012/2612) (the "HMRC Regulations") brought forward by HM Treasury.
"…a right to reside…which exists by virtue of…
(e) Article 20 of the Treaty on the Functioning of the European Union (in a case where the right to reside arises because a British citizen would otherwise be deprived of the genuine enjoyment of the substance of their rights as a European Union citizen)."
"Article 18 TFEU
Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.
Article 21 of the EU Charter: non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited."
APPEALS RAISE COMMON ISSUES
REPRESENTATION
main issues and summary of conclusions
MAIN ISSUES IN DETAIL
MAIN ISSUES (1) AND (2): WHEN DOES THE ZAMBRANO RIGHT ARISE? DOES THE ZAMBRANO CARER HAVE A RIGHT TO CLAIM SOCIAL BENEFITS UNDER EU LAW?
i) Save where the Treaties or EU secondary legislation otherwise provide, EU citizens and their family members residing in another member state enjoy equal treatment with the nationals of the host member state (Article 24(1)).
ii) EU citizens can reside in another member state for up to three months so long as they do not become an unreasonable burden on the social assistance system of the host member state (Articles 6 and 14(1)). It is for the host member state to decide whether to grant social assistance to EU citizens (other than groups such as workers, self-employed persons or their family members, including maintenance assistance for studies to such persons) during this period (Recital 21).
iii) EU citizens and their family members can reside in another member state for longer than three months if they:
a) are workers or self-employed persons in the host member state; or
b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host member state and have comprehensive sickness insurance cover (Article 7(1)).
iv) EU citizens and their family members who have resided legally for a continuous period of five years in the host state can become permanent residents and their right to reside is not then subject to having to show resources or not being an unreasonable burden on the social assistance system of the host state (Article 16).
Zambrano jurisprudence
"provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of his status of Union citizenship right."
Further case law: when does the Zambrano carer's right to reside arise?
The effective citizenship principle
Basic support test
i) Mr Cooper's evidence shows that the UK considers that the legitimate aim of the Amendment Regulations is to safeguard public finances by strengthening immigration control and putting Zambrano carers on a par with other TCNs seeking social assistance.
ii) The measures are suitable to promote that objective.
iii) There is a rational connection between the measures and their legitimate aim.
iv) The level at which benefits are pitched reflects the EU law imperative which is that the Zambrano carer should not be forced to leave the EU. As I have explained, in paragraph 90 above, in my judgment, the law does not descend to asking whether a carer will or will not in fact leave the UK with an EU citizen child if denied access to particular benefits. It looks to the substance and not the form. It is sufficient if the Zambrano carer would be unable to meet basic needs, including needs arising from their caring responsibilities. I am satisfied that, particularly with the inclusion of assistance under section 17 of the Children Act 1989, the measures in place are designed to prevent that from happening.
v) The Zambrano carer is not relegated to some peculiarly inferior position in domestic law. She is not singled out from other TCNs who do not have unconditional leave to remain in domestic law.
vi) The decision to exclude Zambrano carers from income-related benefits does not affect their ability to work and claim contributory benefits.
MAIN ISSUE (3): CAN A ZAMBRANO CARER CLAIM TO BE ENTITLED TO SOCIAL BENEFITS BY VIRTUE OF THE NON-DISCRIMINATION PRINCIPLE AND IF SO IN WHAT CIRCUMSTANCES?
MAIN ISSUE (4): DID THE SECRETARY OF STATE PAY DUE REGARD TO EQUALITY CONSIDERATIONS BEFORE MAKING THE AMENDMENT REGULATIONS IN AUTUMN 2012?
SHOULD THIS COURT REFER ANY QUESTION OF EU LAW TO THE CJEU FOR A PRELIMINARY RULING?
CONSIDERATION OF THE FACTS OF THE INDIVIDUAL CASES
Ms Sanneh
Ms HC
Ms Merali and others
(1) Ms Merali
(2) Ms Lewis
(3) Ms Francis
(4) Ms Sigala
Judgment of HHJ McKenna
Ms Scott
Conclusion
Lord Justice Elias:
Lord Justice Burnett