Sole carers of British children had a right of residence under EU law and, also, a right to work and to a reasonable basic minimum for subsistence; but not to social security benefitsZambrano carersZambrano carers:Zambrano carersZambrano carers

Facts: a number of cases were heard together, so that the Court of Appeal could determine when any right to reside in the UK arose under the Zambrano principle and, when such right arose, whether it carried with it the right not just to work but, also, to mainstream benefits.

Judgment: the Court of Appeal (Arden, Elias and Burnett LJJ) held that:

1) EU law conferred on a Zambrano carer a right to reside from the time when the carer ceased to be liable to be removed from the UK, eg on the birth of a child, upon becoming the primary carer of an EU national who would be forced to leave the EU but for the carer’s presence.

2) In order for the child’s citizenship right under Article 20 TFEU to be effective, member states had to make social assistance available to Zambrano carers, when it was essential to do so, to enable them to support themselves in order to be the carer. The right to such basic support was, however, a derivative right only and was exclusively governed by national law; and accordingly the EU principle of proportionality did not apply.

3) It was not necessary to show, in addition to destitution, that the Zambrano carer would be forced out of the EU for want of resources; if necessary, an assumption about being forced out would be made; the law looked to the substance, not the form, and practical reality, requiring that the Zambrano carer and the EU child must not be left without the resources essential for them to remain. It was not open to the court on the material before it to determine whether section 17 of the Children Act 1989 operated satisfactorily on the ground; but if section 17 assistance was available it would have the effect of ensuring that the basic needs of the child and the Zambrano carer were both properly looked after.

4)) A Zambrano carer could not claim to be entitled to social benefits under the EU principle of non-discrimination under Article 18 TFEU: the discrimination between Zambrano carers and other benefit claimants, resulting from the amending Regulations, was not direct discrimination on the grounds of nationality but indirect discrimination on other grounds which could be justified; further, a Zambrano carer was not a potential beneficiary of social assistance under the EU legislative scheme for cross-border social benefits so as to enable a claim to be brought under Article 18 TFEU; and EU law did not prohibit reverse discrimination, ie unfavourable treatment by a member state of some of its own nationals. Accordingly, the only protection from discrimination available to Zambrano carers or their children was that derived from Article 14 ECHR, but in order to show a violation of the Convention right it would have to be shown that the legislative policy was manifestly without foundation. This could not be done because: the difference in treatment did not leave the Zambrano carer and EU child destitute as they could have recourse to assistance under section 17 of the Children Act 1989; the carer could apply for long-term leave to remain with an abbreviated period for a condition restricting recourse to public funds; and there were deliberate policy reasons for treating Zambrano carers and their children differently from other TCNs or other EU children, including deterrence whose value was a matter for political judgment.

5) The Secretary of State had complied with the general public sector equality duty under section 149 of the Equality Act 2010: the amending Regulations had been made to uphold the position that had existed previously; in such circumstances, the impact of the Regulations and the equality duty was limited.

6) It was not appropriate to make a reference to the ECJ for a preliminary ruling.