The right to care is not an express function of the EU Treaties or the law of freedom of movement. Yet under case law even a non-EU citizen primary carer can claim a right of residence on the basis of caring for their EU citizen child. This appeal involves the important question whether Zambrano carers are entitled to social assistance, i.e. non-contributory welfare benefits, on an equivalent basis as EU citizens lawfully resident in the UK. The debate concerns the effective citizenship principle and prohibited national measures which can undermine it. Two main issues linked to the nature of Zambrano carer status arose in these proceedings in the Court of Appeal. First, when does the status arise? And second, does it confer any right to social benefits? Arden, Elias and Burnett LJJ unanimously held that EU law does not entitle Zambrano carers to the same level of payments of social assistance as lawfully resident EU citizens. Applying the decision in Patmalniece  UKSC 11, they took the view that the discrimination between Zambrano carers and other benefits claimants is not direct discrimination on the grounds of nationality but is indirect discrimination on immigration status. HC is from Algeria and she entered the UK lawfully and became a victim of domestic violence during her marriage to a British citizen. Her two children are British but she became an overstayer when her marriage ended.
The council accommodates her and the children under section 17 of the Children Act 1989 and she receives subsistence and utility costs. Among other things, HC challenged by way of judicial review the legality of the regulations that provide that Zambrano carers are ineligible from receiving non-contributory social benefits. Lady Hale and Lords Clarke, Wilson, Sumption and Carnwath heard this appeal in June 2017 and considered the questions (i) whether the statutory instruments which provide that Zambrano carers are not entitled to social benefits in the UK are unlawful, in particular whether they entail discrimination under EU law or the ECHR which cannot be justified and (ii) whether the resolution of these points of law requires a reference to the CJEU. The AIRE Centre intervened in these proceedings. At first instance, Supperstone J dismissed HC’s claim in light of the judgment in Bah v UK (2012) 54 EHRR 21 and held that the discrimination was justified on the facts of HC’s case. Arden LJ said that Supperstone J had been right that any discrimination was justified on the facts of HC’s case.
Under the effective citizenship principle, derived from articles 20 and 21 of the TFEU, member states may not indirectly remove the benefits of a person’s status as an EU citizen. Prohibited national measures are national measures precluded by the effective citizenship principle. Ruiz Zambrano (C-34/09) enabled its beneficiaries to claim greater social benefits than other third country nationals. In 2012, the UK amended the law and included Zambrano carers to a list of persons not “habitually resident” in the UK and they fell to be excluded from income-related benefits. Since Zambrano carers are not “habitually resident” in the UK, they are unable to access a series of income-related benefits such as income support, income based jobseekers’ allowance, income-related employment and support allowance, housing benefit, council tax benefit, child benefit and child tax credit, state pension credit and universal credit.
Albeit unsuccessfully, HC argued that her disqualification from the full menu of entitlements constituted unlawful discrimination against her and/or her EU citizen children and violated articles 24 and 34 (warranting equal treatment) of the CFR. Because of a lack of recognition of the effects on women and children in the government’s equality analysis and statements, she also alleged breaches of the requirements of the public sector equality duty imposed by section 149 of the Equality Act 2010.
The EU law principle of non-discrimination is laid down in article 18 of the TFEU and article 21 of the CFR. The SSWP, SSCLG and HMRC are the respondents in this case rather than the SSHD. Among other things, the government successfully argued that residence and social benefits rights of EU citizens, their family members and long-term residents are contained in a carefully calibrated legislative system of EU law set out in the Citizens Directive (2004/38/EC), the Long-Term Residence Directive (2003/109/EC, under which long-term residents may receive only core benefits) and the Family Reunification Directive (2003/86/EC, under which family members may be required to provide evidence that they can maintain themselves). Collectively these directives embody the EU cross border social benefits legislative scheme or “the EU CBSBL scheme”.
The Court of Appeal
Addressing the complex issues arising in the appeal, first of all, Arden LJ did not see Zambrano “as an exceptional or unprincipled piece of jurisprudence” despite the exceptionality entailing its application. Zambrano forms part of the effective citizenship principle. It does not disturb the coherence of that principle and it is clear:
72. … that the principle is concerned with creating rights to reside where that is necessary to make a person’s EU citizenship status meaningful and effective.
Since the right to reside stemmed from article 20 of the TFEU, it was also a right to work. It was not sensible to construe the right as arising from the date when prohibited national measures were taken and Arden LJ held that her conclusion was confirmed by the fact that presence in the UK without a right to reside would also expose the Zambrano carer to criminal liability under section 24 of the Immigration Act 1971 even if a prosecution were an abuse of process.
In order to ensure the effectiveness of the EU citizenship right of an EU citizen child cared for by a Zambrano carer, it was incumbent upon the member states to provide social assistance to the carer so that the EU citizen child could be cared for on EU territory. In the event such basic support was made available, the argument fell away that a carer’s departure occurred because of any prohibited national measure or any refusal to pay social assistance that amounted to a prohibited national measure.
Applying Dano (C-333/13), member states are not constrained by any EU treaty provision or legislative measure from deciding the level of benefits for such carers. Arden LJ accepted the government’s submission that the EU CBSBL scheme constitutes an exclusive code as to when member states are obliged to provide social assistance as a matter of EU law. Her Ladyship judged that it did not have to be shown that the carer would in fact have to leave the EU when providing consideration to whether basic support had been provided. Although some reported decisions drew a distinction between, destitution and being forced out of the EU for want of resources, Arden LJ held otherwise because drawing the distinction drawn was out of bounds with the CJEU jurisprudence. Stressing that the law looks to substance and not to form, she interpreted the law in the “real world and freed from the shackles of unreality” and held that:
91. In those circumstances, in my judgment, the effective citizenship principle must be taken to mean that the member state will not undermine the right to reside of the Zambrano carer conferred by EU law by failing to meet the basic needs of the Zambrano carer. These needs of course include the need to be able to care for the EU citizen child. This is not inconsistent with the EU CBSBL scheme because the Zambrano carer’s right to residence does not derive from any Directive within that scheme but from article 20 TFEU.
The court did not find that the principle of proportionality applied to the amount of assistance to be given and Arden LJ said that the status of a Zambrano carer was derived from the EU child’s citizenship rights rather than any personal right of residence or right to social assistance.
The nationality non-discrimination principle in article 18 of the TFEU was available only to EU citizens. Therefore the discrimination between Zambrano carers and other benefits claimants, because of amendments to the law in 2012, did not constitute direct discrimination on the grounds of nationality. Rather, it was indirect discrimination on immigration status. The Court of Appeal was bound by the decision in Patmalniece where the majority of the Supreme Court (4:1) rejected the argument that regulation 2 of the State Pension Credit Regulations 2002 discriminated against a 72-year old Latvian pensioner on the grounds of nationality. Lord Hope held, and Lord Rodger and Lord Brown concurred, that the right to reside test was justified as a tool for controlling “benefits tourism”.
The CJEU said in Vatsouras (C-22/08) and Martínez Sala (C-85/96) that a non-EU national cannot rely on article 18 of the TFEU. Similarly, Lady Hale judged in Patmalniece that only EU nationals could rely on that provision. Following Lord Hope’s approach in Patmalniece it was clear to Arden LJ that had HC not been a non-EU citizen without any leave to remain and had instead been an EU citizen with residence rights “her claim to social assistance would have succeeded.” By holding that the discrimination was on the grounds of immigration status and was therefore indirect, Supperstone J was right to reject HC’s challenge on the basis of the nationality non-discrimination principle and he correctly decided that discrimination was justified on the facts of HC’s case.
Arden LJ found that EU law does not apply when a member state treated some people within its jurisdiction less favourably than others. As she stated at the outset of her judgment at para 29, the only restrictions are those imposed by national law. In the UK, it included article 14 of the ECHR which was not breached because the government made distinctions between Zambrano carers and others on the basis of policy reasons which were not without foundation. Any indirect discrimination was objectively justified for the same reasons.
The UK authorities had complied with their public sector equality duty under section 149 of the Equality Act 2010 when imposing limits on benefits for Zambrano carers in the Social Security (Habitual Residence) (Amendment) Regulations 2012, the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 and the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012. The changes to the law did not change policy and merely restored the position to the pre-Zambrano position. There was no reason to refer any question to the CJEU.
On the brighter side, Elias LJ rebuked the government’s argument that the right conferred by Zambrano arises only at the point when it is being asserted. He was unimpressed by the suggestion that “a countervailing right magically springs into being” granting the carer immunity at the point when enforcement action, if any, is taken. “I wholly reject this analysis of the nature of the Zambrano right. In my view, it is barely coherent” is the way he put it and he went on to clarify that when the conditions specified by the CJEU are met the carer is irremovable if the EU citizen child’s rights are infringed by way of departure from EU territory along with the non-EU parent. His Lordship said that the carer’s presence must be lawful and not merely be tolerated for the EU law right to be properly implemented.
Arden LJ will be well acquainted with her husband Lord Mance’s conclusion that “no explicit constitutional buttress remains against any incursion by EU law whatever”. Since her decision in early 2015, the CJEU has revisited the Zambrano carer theme in its recent ruling in Chavez-Vilchez (C-133/15, see here) where the Dutch authorities refused social assistance and child benefit to numerous Zambrano carer mothers because they were not in possession of a valid residence permit or a equivalent document. Of course, the CJEU reasserted its view that article 20 of the TFEU precludes any national measures amounting to depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their citizenship status. The court also said that a context-sensitive risk assessment must be conducted and it held that:
70. … As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in article 24(2) of that charter.
As argued previously, human suffering and damage to families must be limited and the rights of Zambrano carers must be protected in Brexit negotiations. Indeed, if anything, the UK government must unilaterally guarantee their rights.
After a raft of contradictory statements from ministers, Downing Street formally announced that free movement will end in March 2019 because of Brexit. Politicians campaigning for a hard Brexit are excited that the CJEU’s direct jurisdiction will finally come to end. However, Lord Neuberger, who is retiring from the Supreme Court and will step down next month, has given the government an ultimatum that greater clarity must be provided to exactly how national law will progress and be developed after Brexit. The problem is embedded in the interpretation of retained EU law under clause 6 of the European Union (Withdrawal) Bill. The statutory language is shrouded in ambiguity as it disables a court or tribunal from being bound by CJEU rulings and prevents any questions being referred to the CJEU but nevertheless simultaneously permits the judiciary to have regard to anything done by the CJEU on or after Brexit day if it considers it appropriate to do so.
Since racist newspapers accused judges of being the “enemies of the people” during the course of the Miller litigation, Lord Neuberger is keen to avoid any future recriminations of this sort. Accordingly, his Lordship has warned the government that it needs to be “very clear” about the effects of the CJEU’s judgments after Brexit. He stressed that misinterpretations on the part of the judiciary in an atmosphere of ambiguity must not result in a blame game because “to do so would be unfair”. Quite rightly, the senior most British judge advised Parliament that it must “spell out how the judges would approach that sort of issue after Brexit, and to spell it out in a statute”.