Michaelmas Term [2017] UKSC 73 On appeal from: [2015] EWCA Civ 49

JUDGMENT
R (on the application of HC) (Appellant) v
Secretary of State for Work and Pensions and
others (Respondents)
before
Lady Hale
Lord Clarke
Lord Wilson
Lord Sumption
Lord Carnwath
JUDGMENT GIVEN ON
15 November 2017
Heard on 21 and 22 June 2017
Appellant Respondents
Richard Drabble QC Jason Coppel QC
Ranjiv Khubbe
r Amy Rogers
(Instructed by Platt
Halpern Solicitors
)
(Instructed by The
Government Legal
Department
)
Intervener (The AIRE
Centre)
Charles Banner
(Instructed by Herbert
Smith Freehills LLP
)
Page 2
LORD CARNWATH: (with whom Lord Clarke, Lord Wilson and Lord
Sumption agree)
Introduction
1. This appeal concerns the rights of so-called “Zambrano carers” and their
children to financial support from the state. That expression is derived from the
decision of the Court of Justice of the European Union dated 8 March 2011, in Ruiz
Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265. The case
concerned a Colombian who had been living in Belgium with his wife, and working
(and paying social security contributions), but without a right to reside. Their three
children, born between 2003 and 2005, acquired Belgian nationality at birth, and
with it European citizenship and the right of free movement, under article 20 of the
Treaty on the Functioning of the European Union (“TFEU”). When in 2005 he lost
his job, he was refused unemployment benefit, because under the relevant national
law that depended on his having a right to reside. The European court held that the
refusal of such a right was unlawful because it would result in the children being
deprived of effective enjoyment of their rights as European citizens.
2. The present appeal arises from a challenge to the legality of amendment
regulations introduced in this country in November 2012 in response to the
Zambrano decision. They were designed to limit the rights of Zambrano carers to
claim certain categories of non-contributory social security assistance to which those
“habitually resident” would otherwise be entitled: more specifically, income-related
benefits, child benefit and child tax credit, and housing and homelessness assistance.
The amendment regulations in question are:
i) The Social Security (Habitual Residence) (Amendment) Regulations
2012 (SI 2012/2587), amending the Income Support (General) Regulations
1987 (SI 1987/1967).
ii) The Child Benefit and Child Tax Credit (Miscellaneous Amendments)
Regulations 2012 (SI 2012/2612), amending the Child Benefit (General)
Regulations 2006 (SI 2006/223).
iii) The Allocation of Housing and Homelessness (Eligibility) (England)
(Amendment) Regulations 2012 (SI 2012/2588), amending the Allocation of
Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI
2006/1294).
Page 3
The effect of the amendment in each case is to add to the relevant list of exclusions
from qualifying rights of residence, a right to reside existing by virtue of TFEU
article 20, where that right “arises because a British citizen would otherwise be
deprived of the genuine enjoyment of the substance of their rights as a European
Union citizen”.
3. The Secretary of State’s evidence (in a statement by Gareth Cooper, Policy
Adviser) refers to the Explanatory Memorandum to the amendment regulations.
This explained the purpose as being to maintain the existing policy that nonEuropean Economic Area (EEA) nationals are not entitled to claim income-related
benefits, following the ruling in the Zambrano case. Mr Cooper (para 8) quotes it as
follows:
“… the Home Office are amending their regulations to provide
a right to reside and a right to work to a non-EEA national who
is a primary carer of a dependent British citizen only if the
British citizen would otherwise be forced to leave the UK and
be deprived of exercising their rights as an EU citizen. If the
social security regulations are not amended such persons would
become entitled to income related benefits.”
The amendments had been subject to consultation with local authority associations
and the Social Security Advisory Committee, and had attracted no objection or
substantive comment. According to Mr Cooper it had been estimated by the Home
Office that there would initially be some 700 people a year qualifying for Zambrano
rights, giving rise to a potential annual cost of between £3.8m and £9.4m in respect
of income support, housing benefit and council tax benefit together. Mr Cooper does
not indicate what consideration, if any, had been given to how children of workless
Zambrano carers were to be supported, if not entitled to such assistance.
4. The facts relevant to the present appellant, Mrs HC, can be shortly stated. She
is an Algerian national who has been living in this country since 2008, having
arrived with leave but over-stayed. In 2010 she married a British national on whom
she was financially dependent. She has two children by him, born in August 2011
and March 2013. Her relationship with him ended after domestic violence in late
2012, when she sought help from the Oldham City Council, in whose area she was
then living. After an initial refusal, the council agreed to provide temporary housing
and financial support under section 17 of the Children Act 1989. Separate judicial
review proceedings against the council resulted in an interim order by His Honour
Judge Pelling QC, under which she and her children were accommodated by the
council in two bedroom accommodation and given £80.50 per week to cover
subsistence and utility costs. Those proceedings were later stayed by consent on the
Page 4
council’s agreement to carry out a further assessment of their needs, and to continue
the support in the meantime.
5. It is now common ground (following a decision of the First-tier Tribunal in
April 2014) that she is entitled to reside in the UK as a Zambrano carer. It is also
not in dispute that that entitlement, taken with the financial support provided by the
council, provides not only the legal right, but also the practical support, necessary
to protect the children against being obliged to leave the territory of the European
Union while under her care. Her case (para 36 of her second witness statement) is
that this is not enough:
“As I cannot go back to Algeria and have no right to live in any
other country my only option is to remain here, where at least
I have the protection of a prohibited steps order and the British
courts. … Also my children are British. This is their home
country and the only place they know. They are entitled to grow
up here and, I pray, to enjoy the same benefits and opportunities
of growing up in Britain that other British children have. At
present when I see how they must live compared to their British
cousins and step-siblings I know that they do not in practice
have the same rights. We are expected to make do with far less,
the bare minimum, only enough to survive.”
6. In legal terms, Mr Drabble QC on her behalf submits that it was not legally
possible for the amendment regulations to deny a Zambrano carer and her child
mainstream welfare and housing provision, without contravening what he calls “the
fundamental principle of equal treatment that is part of EU law”, as embodied in
article 21 of the EU Charter of Fundamental Rights (“the Charter”). As a fall-back
position he relies also on article 14 of the European Convention on Human Rights
(“the Convention”).
7. Against this background, the following issues arise:
i) The Zambrano principle.
Does the principle require from the state more for the children and
their Zambrano carer than bare protection (legal and practical) against
being obliged in practice to leave the territory of the Union?
ii) Discrimination:
Page 5
a) In so far as the regulations placed limits on the benefits
available to Zambrano carers was the UK “implementing Union law”
(within the meaning of article 51 of the EU Charter), so as to bring the
Charter into play? If so, did those limits involve unjustified
discrimination on grounds prohibited by article 21 of the Charter?
b) Alternatively, did those limits involve unjustified
discrimination contrary to article 14 of the Convention, taken with
article 8 (right to respect for private and family life) or article 1 of the
First Protocol (right to property)?
The Zambrano principle
8. I start from the formulation of the principle by the European court in
Zambrano itself. Having described citizenship of the European Union as “the
fundamental status of nationals of the member state”, the court said:
“42. In those circumstances, article 20 TFEU … precludes
national measures which have the effect of depriving citizens
of the European Union of the genuine enjoyment of the
substance of the rights conferred by virtue of their status as
citizens of the European Union …
43. A refusal to grant a right of residence to a third country
national with dependent minor children in the member state
where those children are nationals and reside, and also a refusal
to grant such a person a work permit, has such an effect.
44. It must be assumed that such a refusal would lead to a
situation where those children, citizens of the European Union,
would have to leave the territory of the European Union in
order to accompany their parents. Similarly, if a work permit
were not granted to such a person, he would risk not having
sufficient resources to provide for himself and his family,
which would also result in the children, citizens of the Union,
having to leave the territory of the European Union. In those
circumstances, those citizens of the European Union would, as
a result, be unable to exercise the substance of the rights
conferred on them by virtue of their status as citizens of the
Union.
Page 6
45. Accordingly, the answer to the questions referred is that
article 20 TFEU … is to be interpreted as meaning that it
precludes a member state from refusing a third country national
on whom his minor children, who are European Union citizens,
are dependent, a right of residence in the member state of
residence and nationality of those children, and from refusing
to grant a work permit to that third country national, in so far
as such decisions deprive those children of the genuine
enjoyment of the substance of the rights attaching to the status
of European Union citizen.” (emphasis added)
9. It is clear (particularly from the passages highlighted in para 44) that the
reasoning of the court turned specifically and solely on the risk of being obliged to
leave the territory of the Union. There was no issue as to the nature of financial
support (if any) required, nor as to the extent of any right to benefits otherwise
available to nationals. Once the right of residence, and with it the right to work, were
established, the entitlement to and the amount of unemployment benefit followed as
a matter of Belgian law. Indeed Advocate-General Sharpston had dismissed
arguments that there might be an “unreasonable burden” on public finances, pointing
out that Mr Zambrano had worked full-time for nearly five years, paid social security
contributions, and thus “contributed steadily and regularly to the public finances of
the host member state” (Opinion paras 118-120). Mr Drabble rightly does not
suggest that in itself the judgment throws any light on the right to non-contributory
benefits.
10. The same emphasis is found in the next significant case: Dereci v
Bundesministerium für Inneres (Case C-256/11) [2012] 1 CMLR 45. Mr Dereci, a
Turkish national, had entered Austria illegally. He had married an Austrian woman
and had three children who were EU citizens. He applied for a residence permit, but
this was refused by the national authorities because the EU citizens concerned had
not exercised their right of freedom of movement. The European court accepted that,
in the light of its decision in Zambrano, the situation of Union citizens who have not
made use of their freedom of movement could not “for that reason alone, be
assimilated to a purely internal situation” (para 61). Having summarised the decision
in that case, the court said:
“66. It follows that the criterion relating to the denial of the
genuine enjoyment of the substance of the rights conferred by
virtue of EU citizen status refers to situations in which the
Union citizen has, in fact, to leave not only the territory of the
member state of which he is a national but also the territory of
the Union as a whole.
Page 7
67. That criterion is specific in character inasmuch as it
relates to situations in which, although subordinate legislation
on the right of residence of third country nationals is not
applicable, a right of residence may not, exceptionally, be
refused to a third country national, who is a family member of
a member state national, as the effectiveness of Union
citizenship enjoyed by that national would otherwise be
undermined.
68. Consequently, the mere fact that it might appear
desirable to a national of a member state, for economic reasons
or in order to keep his family together in the territory of the
Union, for the members of his family who do not have the
nationality of a member state to be able to reside with him in
the territory of the Union, is not sufficient in itself to support
the view that the Union citizen will be forced to leave Union
territory if such a right is not granted.
69. That finding is, admittedly, without prejudice to the
question whether, on the basis of other criteria, inter alia, by
virtue of the right to the protection of family life, a right of
residence cannot be refused. However, that question must be
tackled in the framework of the provisions on the protection of
fundamental rights which are applicable in each case.”
11. That passage indicates both the “exceptional” nature of the Zambrano right
(para 67); and that it is triggered not by the mere desirability of keeping the family
together, on economic or other grounds, but solely by the threat of being “forced to
leave Union territory” if the right were not granted (para 68). Subsequent authorities
are to the same effect. We have been referred to no European court authority which
extends Zambrano rights to include non-contributory benefits of the kind in issue in
the present appeal.
12. A more recent example, on which Mr Drabble relies, is Rendón Marin v
Administración del Estado (Judgment: Citizenship of the Union) [2016] EUECJ C165/14; [2017] QB 495, where the court described this line of cases as having –
“… the common feature that, although they are governed by
legislation which falls, a priori, within the competence of the
member states, namely legislation on the right of entry and
residence of third-country nationals outside the scope of
provisions of secondary legislation which provide for the grant
Page 8
of such a right under certain conditions, they nonetheless have
an intrinsic connection with the freedom of movement and
residence of a Union citizen, which prevents the right of entry
and residence being refused to those nationals in the member
state of residence of that citizen, in order not to interfere with
that freedom.” (para 75)
13. Mr Drabble asks us to note that the national (Spanish) court, in making the
reference, had referred to its possible relevance to social benefits under domestic
law (para 30). However, there is nothing in the European court’s treatment of the
case itself to suggest that the “scope of EU law” for these purposes extended beyond
protection against being obliged to leave. Thus it was left for the national court to
determine whether the refusal to grant residence to the father would mean that he
had to “leave the territory of the European Union” with the result that “the children
could be compelled to go with him, and therefore to leave the territory of the
European Union as a whole” (para 78).
14. In R (Agyarko) v Secretary of State for the Home Department [2017] UKSC
11; [2017] 1 WLR 823, paras 62-63, in a judgment agreed by the other members of
the Supreme Court, Lord Reed referred to this line of cases and emphasised the
specific and derivative nature of the rights so conferred. He cited a passage from the
judgment of the European court in S v Secretary of State for the Home Department
(Case C-304/14) [2017] QB 558; [2017] 2 WLR 180, para 29, holding –
“that there are very specific situations in which, despite the fact
that the secondary law on the right of residence of third-country
nationals does not apply and the Union citizen concerned has
not made use of his freedom of movement, a right of residence
must nevertheless be granted to a third-country national who is
a family member of his since the effectiveness of citizenship of
the Union would otherwise be undermined, if, as a consequence
of refusal of such a right, that citizen would be obliged in
practice to leave the territory of the European Union as a
whole, thus denying him the genuine enjoyment of the
substance of the rights conferred by virtue of his status.”
(emphasis added)
15. The emphasised words in that citation are critical in defining the limited
scope of the right. On this issue I agree entirely with the analysis of Elias LJ
(Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA
Civ 1736; [2013] 2 CMLR 23, paras 63-70). As he said:
Page 9
“The right of residence is a right to reside in the territory of the
EU. It is not a right to any particular quality of life or to any
particular standard of living. Accordingly, there is no
impediment to exercising the right to reside if residence
remains possible as a matter of substance, albeit that the quality
of life is diminished …” (para 67)
Baumbast and related cases
16. It is convenient at this point to address Mr Drabble’s argument based on a
line of cases beginning with Baumbast v Secretary of State for the Home Department
(Case C-413/99) [2002] ECR I-7091, followed in Ibrahim v Harrow London
Borough Council and Teixeira v Lambeth Borough Council (Joined Cases C-310/08
and C-480/08) (both reported at [2010] ICR 1118). These were concerned directly
with a quite different issue: the interpretation of EU Regulation 1612/68, on freedom
of movement for workers. Article 12 provided that children of a national of a
member state employed in the territory of another member state should be admitted
to that state’s general educational courses “under the same conditions as the
nationals of that state, if such children are residing in its territory”.
17. In Bambaust itself there was an issue whether the children’s rights of
residence under the article continued after a change in the position of the parents in
the state concerned. It was held that the children retained their right under article 12
to reside for the purpose of attending educational courses, notwithstanding the facts
that the parents had divorced, that the only Union citizen parent had ceased to be a
migrant worker in the state concerned, and that the children were not themselves
citizens of the Union (para 63). It was held further that the parent who was the
primary carer, irrespective of nationality, must be permitted to reside with them in
order to facilitate the exercise of their right.
18. Mr Drabble relies in particular on the application of that principle in the
second case, Ibrahim. That concerned a Somali national who entered with leave to
join her Danish husband, who was at the time working here; their children began to
attend school shortly after her arrival. They later separated, and the husband had
ceased working here, and she was wholly dependent on social assistance. The
question arose whether she had a right of residence derived from her children’s
rights under article 12, or whether that was subject to the conditions laid down in
the Citizenship Directive (2004/38), including that of “sufficient resources”. On a
reference from the Court of Appeal, the CJEU held that the rights of both children
and their primary carers were derived from article 12, and were not as such subject
to any such conditions (under the Citizenship Directive or otherwise) (paras 50-59).
Page 10
19. Mr Drabble relies on this as showing that once the right of residence is
established it was not necessary to show a positive right to claim social assistance.
In the words of his case (para 4.34):
“The whole approach proceeds on the basis that if there is a
right of residence which arises even if the individuals
concerned are not self-sufficient, the individuals who are
exercising the rights derived from EU law will be able to claim
the same benefits as nationals of the host state.”
By the same token, he submits, in the absence of any self-sufficiency condition or
other limitation, the residence rights of Zambrano carers should be treated as giving
rise to the same benefits as those of other categories of resident.
20. He adopts a passage from an article by Dr Charlotte O’Brien “‘Hand-tomouth’ citizenship: decision time for the UK Supreme Court on the substance of
Zambrano rights, EU citizenship and equal treatment”: [2016] 38(2) JSWFL 228 at
p 234:
“The CJEU [in Zambrano] created an EU citizenship-based
right to reside, which necessarily triggers a right to equal
treatment under EU law. Nowhere did the CJEU suggest that
those exercising that right were not intended to really have that
kind of right. Given that the Zambrano case was a benefits case,
it seems only fair to suppose that had the CJEU wished to
invent a new equal-treatment free right to reside, that is
something they might have mentioned.
We have been here before, and should have learnt from past
experience. Following Baumbast UK authorities were adamant
that Baumbast only applied to the self-sufficient (ie the welloff), even though the CJEU had not said so, and in spite of the
incongruity with the case law. According to the UK the right to
reside did not entail equal treatment. The Court of Appeal,
while making the reference in Ibrahim … [2008] EWCA Civ
386 was inclined to agree, expressing scepticism about the idea
that they shouldn’t read a self-sufficiency condition into
Baumbast (55). However, the CJEU in Ibrahim … made clear
that there was no basis for a condition of self-sufficiency in the
legislation in question (52), or in the case law (53) and
specifically pointed out that the ruling in Baumbast had not
been based on a finding of self-sufficiency …”
Page 11
21. I have two difficulties with the comparison so made with this line of cases.
In the first place, the domestic law context was quite different. As the court noted in
Ibrahim (para 14), entitlement under the national legislation turned on whether she
had a right of residence conferred by EU law, but was otherwise unlimited. The issue
was whether it was implicitly subject to a self-sufficiency condition derived from
EU law. No such issue arises here. The limitations are derived from the domestic
legislation, and the only issue is their compatibility with EU law. Secondly, the
proposition that the right of residence created in Zambrano “necessarily triggers” a
right to equal treatment under EU law begs one of the principal issues raised by the
present appeal – a question to which I now turn.
Discrimination under the Charter
22. Although Mr Drabble has referred to what he calls the “fundamental principle
of equal treatment that is part of EU law”, his submissions (rightly in my view) are
not based on any such general principle. They are directed specifically to article 21
of the Charter, as applied by article 51, rather than any more general principle. At
an earlier oral permission hearing of this case permission was refused for a separate
ground of appeal based on article 18 of the Treaty, which prohibits discrimination
on the grounds of nationality. That can have no application to a third country
national, such as Mrs HC. As Lady Hale has said (Patmalniece v Secretary of State
for Work and Pensions [2011] 1 WLR 783, para 83):
“This [article 18] is not a general prohibition of discrimination
on grounds of nationality. Only the nationals of member states
are protected. Discrimination against third country nationals is
not prohibited. Indeed it is positively expected. The underlying
purpose is to promote the objects of the Union and in particular
the free movement of workers between the member states and
the free establishment of businesses within them.”
23. Under the Charter, the starting point is article 51, by which the principles of
the Charter apply to member states “only when they are implementing Union Law”.
Mr Drabble submits that for this purpose it is sufficient that the Zambrano principle
brings the carer and child “within the scope” of the EU treaties “ratione personae”
(adopting the language of the CJEU in Martínez Sala v Freistaat Bayern (Case C85/96), [1998] ECR I-2691). Alternatively, in setting the support to be provided to
Zambrano carers, and in choosing between section 17 support and mainstream
welfare benefits, the Secretary of State was choosing between different modes of
implementing EU law, or (as Mr Banner puts it, for the AIRE Centre, as intervener)
regulating the entitlement to financial assistance under EU law.
Page 12
24. Mr Coppel, for the Secretary of State, rejects that approach. It is not enough
to say that Mrs HC is personally (“ratione personae”) within the scope of the Treaty
by virtue of her derivative right of residence. Sala was directed specifically to the
rights of EU citizens (see judgment paras 62-63), and was not in any event concerned
with the application of the Charter. Nor is it enough that the national law is related
in some way to EU law. There must be a direct link between the act in question and
the implementation of that law.
25. This is illustrated by reference to Ymeraga v Ministre du Travail, de l’Emploi
et de l’Immigration (Case C-87/12) [2013] 3 CMLR 33. That concerned the refusal
by the Luxembourg government, under a national law on freedom of movement, to
grant a right of residence to family members of the first applicant (Mr Y). One issue
concerned the application of the Charter to the law in question. The court considered
whether the refusal was “a situation involving the implementation of European
Union law” within the meaning of article 51. For that purpose –
“… it must be ascertained among other things whether the
national legislation at issue is intended to implement a
provision of EU law, what the character of that legislation is,
and whether it pursues objectives other than those covered by
EU law, even if it is capable of indirectly affecting that law,
and also whether there are specific rules of EU law on the
matter or capable of affecting it …” (para 41)
The court accepted that the national law on freedom of movement was “indeed
intended to implement EU law”, but that was not enough. The situation of the
applicants was not governed by either of the EU directives relied on, nor did the
refusal of a right of residence to Mr Y’s family members “have the effect of denying
him the genuine enjoyment of the substance of the rights conferred by virtue of his
status as citizen of the Union”. Accordingly the refusal did not involve the
implementation of European Union law, and accordingly the Charter had no
application (paras 41-43).
26. Mr Coppel relies particularly on Dano v Jobcenter Leipzig (Case C-333/13)
[2015] 1 WLR 2519 (“Dano”), as showing that decisions about the level of noncontributory benefits, absent any specific requirement or condition of EU law, are
not within the scope of the Charter. In that case a Romanian mother had been living
in Germany with her son, where she was looking for work. Her application for
benefits as a job-seeker was refused because national law excluded such benefits for
foreign nationals whose right of residence arose solely out of the search for
employment. This was challenged as breaching their right to equal treatment under
Parliament and Council Regulation No 883/2004 (which categorised such benefits
as “special non-contributory cash benefits”), article 4 of which provided that Union
Page 13
citizens residing in another member state should enjoy the same benefits as nationals
of the host member state. It was held by the CJEU (in summary) that, although the
benefits in question fell within the scope of article 4, they were linked to the right of
residence under the Citizenship Directive and could be limited by reference to its
conditions.
27. A fourth question related to the application of certain provisions of the
Charter. The court referred to article 51, and to article 6(1) of the EU Treaty, by
which the provisions of the Charter are not to extend the competences of the EU as
defined in the Treaties (paras 87-88). It noted that the relevant regulation did not lay
down conditions for the rights in question; it was therefore for the legislature of each
state to lay down those conditions (para 89). It concluded:
“91. Consequently, when the member states lay down the
conditions for the grant of special non-contributory cash
benefits and the extent of such benefits, they are not
implementing EU law.”
28. In my view Mr Coppel’s approach is correct. The test is not whether Mrs HC
is personally within the scope of EU law in some way. The issue must be judged by
reference to the test set by article 51, which is directed to “implementation” of EU
law. Once it is determined that EU law does not require more for the children of a
Zambrano carer than practical support sufficient to avoid their being obliged to leave
the Union, that also sets the limits of what is involved in its implementation.
Although it is open to the state to provide more generous support (“gold-plating”,
as it is sometimes called), that is the exercise of a choice under national law, not EU
law. To describe this as “regulating” the financial assistance given to the EU carer
does not alter that fact. Just as Mr Ymeraga could not rely on the Charter to extend
the derivative rights otherwise available to his family members, so Mrs HC cannot
rely on it to give her any entitlement to financial assistance beyond the limited
support required by the Zambrano principle itself.
29. The point does not bear of much elaboration, but the conclusion is sufficient
to dispose of this issue in favour of the Secretary of State. It is unnecessary therefore
to consider the interesting questions which would have arisen under article 21, had
the Charter been held to apply.
Discrimination under the Convention
30. I can deal relatively briefly with this issue, which was not developed in any
great detail by Mr Drabble, other than by repetition of the arguments advanced in
Page 14
respect of article 21 of the Charter. In short, he submits that the amendment
regulations have an impact within the ambit of article 8, or article 1 of the First
Protocol, and that accordingly there is right under article 14 not to be discriminated
against without reasonable justification.
31. It is unnecessary for present purposes to enter into the continuing debate
about the application to benefits of this kind of article 8, as opposed to article 1 of
the First Protocol) (see per Collins J R (DA) v Secretary of State for Work and
Pensions [2017] EWHC 1446 (Admin), paras 39-40). I am prepared to proceed on
the basis that the case falls within the ambit of convention rights so as potentially to
engage article 14. That article provides:
“The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The “status” on which Mr Drabble relies, as I understand his submission, is either
immigration status, or, more narrowly, the status of Zambrano carer and child. I do
not think that either can assist him under article 14. Discrimination on the basis of
immigration status is of course a fundamental and accepted part of both EU and
national law, but cannot in itself give rise to an issue under article 14. In so far as
Mrs HC’s differential treatment arises from her status as a third country national,
she can have no complaint. So far as concerns her Zambrano status, that is a creation
of European law, and such differences of treatment as there are, as compared to other
categories of resident, do no more than reflect the law by which the status is created.
32. In any event, the Strasbourg court has long accepted that the allocation of
limited public funds in the social security and welfare context is pre-eminently a
matter for national authorities, subject only to the requirement that their decisions
should not be “manifestly without reasonable foundation” (see R (MA) v Secretary
of State for Work and Pensions (Equality and Human Rights Commission
intervening) [2016] 1 WLR 4550, para 32 per Lord Toulson). The government’s
reasons for not providing support to Zambrano carers, as explained in the evidence
of Mr Gareth Cooper, included the objectives of reducing costs by allocating
benefits to those with the greatest connection with this country, of encouraging
immigrants here unlawfully to regularise their stay, of encouraging TCNs wishing
to have children here to ensure that they had sufficient resources to support
themselves and their children, and of reducing “benefits tourism”. Like Arden LJ in
the Court of Appeal (para 96) in spite of criticisms made by Mr Drabble, I find it
impossible to say that these objectives fall outside the wide margin of discretion
allowed to national governments in this field.
Page 15
Section 17
33. As I have said, no issue arises in this appeal as to the scope of the local
authority’s duties under section 17 of the Children Act 1989, and we have heard no
argument upon them. However, it has emerged as an important aspect of the
government’s response to Zambrano principle, which may not have been anticipated
at the time that the amending regulations were being prepared. There is no indication
that it was the subject of discussion between central and local government at that
time. Mr Cooper does no more than refer to the actions taken by the Oldham
Borough Council, as the responsible local authority under that Act. He does not
suggest that section 17 formed any part of the government’s thinking when
preparing the regulations, or of any impact assessment then carried out. Nor have
we heard any submissions from the Oldham Borough Council itself. However some
brief comment may be appropriate.
34. Section 17(1) imposes a “general duty” on local authorities:
“(a) to safeguard and promote the welfare of children within
their area who are in need; and
(b) so far as is consistent with that duty, to promote the
upbringing of such children by their families,
by providing a range and level of services appropriate to those
children’s needs.”
The services so provided may include providing accommodation and giving
assistance in kind or in cash (section 17(6)). A child is taken to be in need for this
purpose if (inter alia) –
“… he is unlikely to achieve or maintain, or to have the
opportunity of achieving or maintaining, a reasonable standard
of health or development without the provision for him of
services by a local authority under this Part.” (section 17(10))
More detailed provision as to how that duty is to be carried out is contained in
Schedule 2 to the Act. Also relevant is section 11 of the Children Act 2004, which
requires local authorities to make arrangements to ensure that “their functions are
discharged having regard to the need to safeguard and promote the welfare of
Page 16
children” (section 11(2)(a)); and in so doing to have regard to any guidance given
to them for the purpose by the Secretary of State (section 11(4)).
35. The scope of the section 17 duty was considered by the Court of Appeal in R
(C) v London Borough of Southwark [2016] EWCA Civ 707; [2016] HLR 36. That
case concerned assistance provided to children of a Nigerian mother following the
refusal of leave to remain, and pending their return to Nigeria. The court rejected,
on the evidence, a claim that the authority had applied an unlawful policy of setting
financial support by reference to levels of child benefit, or to amounts paid by the
Secretary of State to asylum-seekers, rather than by way of assessing their actual
needs. In the leading judgment Ryder LJ described the duty in these terms:
“12. It is settled law that the section 17 scheme does not
create a specific or mandatory duty owed to an individual child.
It is a target duty which creates a discretion in a local authority
to make a decision to meet an individual child’s assessed need.
The decision may be influenced by factors other than the
individual child’s welfare and may include the resources of the
local authority, other provision that has been made for the child
and the needs of other children … Accordingly, although the
adequacy of an assessment or the lawfulness of a decision may
be the subject of a challenge to the exercise of a local
authority’s functions under section 17, it is not for the court to
substitute its judgment for that of the local authority on the
questions whether a child is in need and, if so, what that child’s
needs are, nor can the court dictate how the assessment is to be
undertaken …

14. A local authority that provides support for children in
need under the 1989 Act is acting under its powers as a
children’s services authority (a local social services authority
with responsibility for children) not as a local social services
authority performing functions relating to homelessness and its
prevention, and not as a local housing authority. The limited
nature of the local authority’s power is important. The local
authority appropriately remind this court of the statement of
principle in this regard which is to be found in R (Blackburn
Smith) v London Borough of Lambeth [2007] EWHC 767
(Admin) at para 36 per Dobbs J:
Page 17
‘… the defendant’s powers [under section 17] were
never intended to enable it to act as an alternative
welfare agency in circumstances where Parliament had
determined that the claimant should be excluded from
mainstream benefits.’”
36. As that judgment makes clear, section 17 is designed to cover a wide range
of circumstances in which a local authority may need to take action to protect the
interests of children in their area, temporary (as in that case) or more long-lasting.
The duty arising in the present context is perhaps unusual in that arises from a
responsibility imposed by EU law on member states. It is also likely to continue so
long as no other sources of support are available to the child. On the view I have
taken the allocation of responsibility for that support, as between central and local
government, is an issue of national rather than EU law. However, that does nothing
to diminish the importance of the duty.
37. It must always be remembered that the primary objective is to promote the
welfare of the children concerned, including the upbringing of such children by their
families. The assessment of need must remain the responsibility of the local
authority (as Ryder LJ made clear), but, given that this is a national responsibility,
it is clearly desirable that there should be a degree of consistency as between
authorities. The legislation allows for the provision of national guidance. Judicial
review is available as a backstop, but it is likely to be unsatisfactory for the levels
of appropriate support to be left for determination by the individual authorities on a
case-by-case basis, subject only to control by the courts by reference to conventional
Wednesbury principles. On this aspect I agree also with the observations of Lady
Hale at paras 43-46 of her judgment.
Conclusion
38. For the reasons given above, which are substantially the same as those of the
Court of Appeal, I would dismiss the appeal.
LADY HALE:
39. I have found this a very troubling case. It is not a case about adults’ rights. It
is a case about children’s rights – specifically the right of these two very young
British children to remain living in their own country and to have the support which
they need in order to enable them to do so. Self-evidently they need the support of
their mother in the shape of the care which she is able to give them. But they also
need support in the shape of a place to live and enough to live on.
Page 18
40. Yet this is not the way in which the policy-makers who framed the various
Regulations which are under attack in these proceedings saw the matter. They saw
it solely in terms of the mother and other Zambrano carers like her, as third country
nationals who should be put in the same position as any other third country national.
Third country nationals are not, in general, entitled to income-related benefits; and
so (as Mr Gareth Cooper explains) the Department for Work and Pensions extended
this rule to Zambrano carers. Third country nationals are only entitled to be allocated
social housing or given homelessness assistance if this accords with the
Government’s immigration and asylum policy, broadly only if they have leave to
enter or remain without a condition that they have no recourse to public funds; and
so (as Ms Frances Walker explains) the Department for Communities and Local
Government excluded Zambrano carers from eligibility. Third country nationals are
only entitled to child benefit and child tax credits in broadly the same circumstances;
and so (as Mr Phillip Dearne explains) Her Majesty’s Revenue and Customs
excluded them from eligibility.
41. Yet Zambrano carers are not like any other third country nationals. They have
British (or other EU citizen) children dependent upon them. That is why, because of
the Zambrano decision, the Immigration (European Economic Area) Regulations
2006 (SI 2006/1003) had to be amended to give them the right to live and work here.
There is not a hint in the evidence which we have seen that any consideration was
given to how these children would be supported if the parent looking after them was
unable to work, whether because of the demands of child care or for any other good
reason. We are told that the Department of Work and Pensions consulted the local
government associations about the exclusion from benefits and the associations
made no objection. We do not know whether it had occurred either to central or to
local government that (unless there was family or charitable support) the only way
in which these children could escape destitution was through the powers of local
children’s services authorities under section 17 of the Children Act 1989. If that had
been made clear, one imagines that the local government associations might well
have expressed some concern about the transfer of this responsibility to them
without some corresponding transfer of the considerable sums entailed in
discharging this responsibility properly.
42. Section 17 empowers and obliges local authorities to provide a range of
services to safeguard and promote the welfare of “children in need” and, so far as is
consistent with that duty, to promote their upbringing by their families. It is a
development of a duty dating back to the Children and Young Persons Act 1963 to
provide families with help in order to avoid the need for children to be taken into
care or looked after by the local authority. It was not intended to be a long-term
substitute for social housing or means-tested benefits. Fortunately, however, section
17(6) provides that “The services provided by a local authority in the exercise of
functions conferred on them by this section may include providing accommodation
and giving assistance in kind or in cash”. As originally enacted, cash could only be
Page 19
provided “in exceptional circumstances”, but those words were repealed in 2011,
under powers granted by the Children and Young Persons Act 2008.
43. Section 17 services have the great merit of flexibility. They can be adjusted
to the needs of the particular child or family. They may well be in addition to the
benefits and services to which the family are entitled under other legislation and thus
may provide assistance at a higher level than that. But they have several
disadvantages when compared with the benefits and services from which these
children and their carers are excluded. First, they depend upon the local authority
considering that the child is “in need” as defined in section 17(10) and (11) (see para
34). This is a judgment to be made by the local authority subject only to judicial
review on the usual principles. Second, they are discretionary and not as of right to
those who qualify. Indeed, it has been held that (unlike the duty to accommodate a
child in section 20 of the 1989 Act) the section 17 duty is a “target duty” rather than
a duty owed to any individual child. Third, there are no standard rates for assistance
in cash, as there are with state benefits generally, with the consequent risk of
inconsistency between authorities. Fourth, providing assistance in cash does not
automatically bring with it entitlement to other assistance, such as free school meals,
to which receipt of certain benefits is a passport. Fifth, the only way in which a
family can seek to challenge the local authority’s decision is through judicial review,
which is far more limited in scope and accessibility than an appeal to the social
entitlement chamber of the First-tier Tribunal.
44. Thus, according to the mother’s evidence, when she approached the local
authority for the area where she was living with her husband, she was given her train
fare to travel north to the area where her sister and family were living. This is a
typical use of section 17 money. When she approached the local authority for that
area, because her sister could not house and feed her and her child and her expected
second child indefinitely, she was at first refused. But eventually she was offered one
room in a local hotel and £45 per week in cash. That is how things stood when these
proceedings were launched in July 2013. The local authority then reassessed the
children’s needs and (through their Head of Safeguarding, Mr Saul Ainsworth)
offered them two-bedroomed accommodation of the sort which would be offered to
a family who may be eligible for homeless accommodation and in effect to discharge
her council tax liability; £55 a week for subsistence, based on the UK Border
Agency’s figures for the amount needed to meet the needs of one adult and two
children under three (as they then were); and £25.50 a week for gas, electricity and
water, based on local inquiries. The annual cost of this package was estimated at
£11,368.76, while the local authority’s annual budget for section 17 support was
£12,000 (which is an indication that it is not expected to be used to provide long term
income support).
45. It was on that basis that, on 1 August 2013, the proceedings against the local
authority were stayed while the proceedings against the Department of Work and
Page 20
Pensions, the Department for Communities and Local Government and Her
Majesty’s Revenue and Customs, challenging the various regulations, continued.
We are told that that is still the position today, although of course the local authority
may carry out a further review of the children’s needs, especially as they are older
now, and will no doubt have to do so if these proceedings are concluded in the
Government’s favour.
46. In carrying out that review, the local authority will no doubt bear in mind,
not only their duties under section 17, but also their duty under section 11 of the
Children Act 2004, to discharge all their functions having regard to the need to
safeguard and promote the welfare of children, and their duty, under section 175 of
the Education Act 2002, to exercise their education functions with a view to
safeguarding and promoting the welfare of children. Safeguarding is not enough:
their welfare has to be actively promoted. The authority will no doubt take into
account that these are British children, born and brought up here, who have the right
to remain here all their lives; they cannot therefore be compared with asylumseeking children or the children of asylum-seeking parents, who may end up with
no or only a limited right to remain. They will no doubt also wish to take into account
the impact upon the proper development of these children of being denied a level of
support equivalent to that of their peers, that is, the other British children around
them whose families are dependent on income-related benefits. That level of support
is not fixed at a level designed to lift children out of poverty, as officially defined,
but at a level much closer to subsistence.
47. The above is, of course, premised on the dismissal of this appeal. Zambrano
and the later cases say nothing about entitlement to benefits, but they do recognise
that the children are dependent upon their parents, not just for care, but also for
financial support, at least if it is derived from the parents’ ability to work. The
situation of Zambrano carers and their children does not fall within the European
Union legislation on access to social security and other welfare benefits. All that
Zambrano requires is that the children are not effectively deprived of their rights as
European citizens by the situation in which they find themselves. Section 17 support,
at least if it is determined giving due weight to the factors suggested above, should
be sufficient to ensure that they are not effectively deprived of their rights as British
and European citizens.
48. So the questions of EU law which arise are, first, does the Charter of
Fundamental Rights apply, and second, what difference, if any, would it make if it
did? By article 51 of the Charter, its provisions are addressed to the member states
“only when they are implementing Union law”. The change to the 2006 Immigration
Regulations, allowing Zambrano carers to live and work here, was of course
implementing Union law. But were the changes to the Regulations at issue here
doing so? They were in consequence of a development in Union law, but they were
not implementing it – in fact, quite the reverse. Supposing that there had been no
Page 21
fall-back in the shape of section 17, this could well have been a failure to implement
Union law, leaving these children and their carers without support in this country
and thus effectively obliging them to leave. But there is section 17, and in my view
it is the administration of section 17 which could be said to be implementing Union
law, by enabling these children to remain living in this country.
49. Assuming for the moment, without deciding, that the Charter can apply, not
only to domestic legislation which implements Union law but also to domestic
administration which does so, what difference would the Charter make in this
context? Article 24(1) requires that “Children shall have the right to such protection
and care as is necessary for their well-being”; section 17 of the 1989 Act is designed
as a way of doing this. Article 24(2) requires that “In all actions relating to children,
whether taken by public authorities or private institutions, the child’s best interests
must be a primary consideration”. This obligation is obviously derived from article
3(1) of the United Nations Convention on the Rights of the Child, as was the
obligation in section 11 of the 2004 Act. Properly understood, they should amount
to the same thing.
50. By article 21(1) of the Charter, “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”. The discrimination
complained of here is between two types of British citizen child – the child who is
being cared for by a third country national with only Zambrano carer’s rights to be
here, and the child who is being cared for by a parent (or anyone else) who is entitled
to claim income related benefits, child benefit and child tax credit, and to seek social
housing and homelessness assistance. In general, of course, member states are
entitled to draw distinctions between different categories of their own citizens, as
long as these are not based on the listed personal characteristics. But, at a stretch, it
might just be possible to regard this as a “ground such as” those listed.
51. If that were so, I am not impressed by the justifications given by the
respondents’ witnesses. These were justifications for exclusion from mainstream
benefits. They were addressed to the parents, viewed as third country nationals
rather than Zambrano carers, and not to the children. A child-focussed approach
would have been quite different. Thus the first aim, allocating benefits to those with
the greatest connection with this country, would obviously include allocating
benefits to British children who were born here and have lived here all their lives.
The second aim, of strengthening immigration control, is irrelevant to children who
are not subject to it. Their Zambrano carers are only here to support them and for a
long as they need that support. A third aim, of saving money, is less than compelling,
given that what has in fact happened is a transfer of responsibility from one arm of
government to another. As we have seen, the sums involved for a local authority
such as this one are not negligible.
Page 22
52. But if there is a need to avoid discrimination against the children of
Zambrano carers, this merely reinforces my view of what local authorities should
be taking into account when making their decisions about the level of support to be
provided under section 17. Section 17 is one way of providing these children with
what they need and deserve. That fact that there are other, and in some respects
preferable, ways of doing so does not mean that the United Kingdom is in breach of
its obligations under EU law. But no doubt local authorities would welcome some
guidance on how they should meet their responsibilities to children with Zambrano
carers (and even some help in doing so).
53. For these reasons, I agree that there is no question to be referred to the Court
of Justice of the European Union and this appeal should be dismissed.