Pryce v London Borough of Southwark

A person who falls within the Zambrano principle has an enforceable EU right of residence. Such a person is not subject to immigration control under section 7(1) of the Immigration Act 1988 or section 185(2) of the Housing Act 1996. Eligibility for homelessness assistance depends on whether the factual requirements of the principle are satisfied, rather than on prior documentary permission to reside. The inquiry is fact-sensitive. The court left the wider scope and application of the principle open.

The appellant, a Jamaican national who had overstayed her leave, was the sole or principal carer of twin British citizen children. Southwark London Borough Council decided on review that she was subject to immigration control and ineligible for homelessness assistance under Part VII of the Housing Act 1996. Her appeal under section 204 was dismissed by the Central London County Court.

On appeal, the council conceded that she satisfied the factual requirements of the Zambrano principle. The Secretary of State for the Home Department intervened because the issue had wider significance. The central question was whether a person to whom the principle applied had a substantive and directly effective EU right of residence, rather than merely a right to apply for domestic permission.

1. Appeal allowed. The order of HHJ Faber dated 2 May 2012 was set aside. The council’s review decision was varied under section 204(3) of the Housing Act 1996 so that the appellant was eligible for assistance under section 185.

2. Article 20 TFEU contains treaty rights directly applicable in the United Kingdom through section 2(1) of the European Communities Act 1972. No further transposition into national law is required.

3. Applying Ruiz Zambrano v ONEM, a person in respect of whom refusal of a right of residence would be inconsistent with Article 20 is not subject to immigration control for the purposes of section 185 of the Housing Act 1996 or section 7 of the Immigration Act 1988. The right is not limited to a procedural entitlement to apply for leave or a work permit.

4. Whether a person falls within the Zambrano principle is a fact-sensitive question for the relevant decision-maker. In this case the council had accepted that the appellant met its requirements, and there was no issue concerning habitual residence.

5. The court cautioned that the judgment was given without contrary submissions on the effect of Zambrano. It deliberately left the wider scope and consequences of the principle for determination in an appropriate case.

• Court of Appeal (Civil Division): Appeal allowed. The order of HHJ Diana Faber was set aside, and the council’s review decision was varied under section 204(3) of the Housing Act 1996.

• Central London County Court: HHJ Faber dismissed the appellant’s appeal under section 204 against the council’s review decision.