HC, R (On the Application Of) v Secretary of State for Work and Pensions & Ors

A derivative right of residence and work under Ruiz Zambrano v Office National de L’Emploi does not confer a general entitlement to mainstream social security, tax credits or housing assistance. The right is limited to what is necessary to prevent dependent Union-citizen children being deprived of the genuine enjoyment of the substance of their Union citizenship rights.

Excluding Zambrano carers by reference to the nature of their residence status is not direct discrimination on grounds of nationality. Any indirect discrimination was justified by the legitimate aim of protecting scarce public resources and maintaining immigration controls. The Charter creates no freestanding entitlement to benefits, and the public sector equality duty requires due regard, not adoption of the most favourable policy for affected children.

The claimant, an Algerian national and mother of two British children, challenged 2012 amendments to the social security, tax credit and housing eligibility regimes. She argued that the amendments unlawfully undermined rights derived from Ruiz Zambrano v Office National de L’Emploi, discriminated against her and her children, breached the Charter and the ECHR, and violated the public sector equality duty under the Equality Act 2010.

The defendants contended that the Zambrano right was confined to residence and work, and did not include a right to mainstream benefits. The central issues were the scope of the derivative right, whether the amendments were discriminatory or disproportionate, and whether the defendants had complied with the equality duty.

1. Claim dismissed. The claimant’s case proceeded on an incorrect understanding of the scope of the Zambrano right. Under Article 20 TFEU, the right is derivative and exists only so far, and for so long, as residence and work are necessary to prevent dependent Union-citizen children being compelled to leave the territory of the Union. It is not a right to a particular quality or standard of life.
2. The claimant did not contend that the denial of mainstream benefits would force her children to leave the United Kingdom or the European Union. The authorities, including Sanneh v Secretary of State for Work and Pensions, Harrison (Jamaica) and AB (Morocco) v Secretary of State for the Home Department and Dereci v Bundesministerium für Inneres, established that Zambrano does not itself confer a right to welfare benefits.
3. The amendments did not directly discriminate on grounds of nationality. They applied by reference to the type of residence right held. Article 18 TFEU and Article 21(2) of the Charter did not protect a third-country national in these circumstances. The claimant’s children did not acquire separate rights to claim the benefits in question.
4. Any indirect discrimination was justified. The regulations pursued legitimate aims, including protecting scarce public resources, preventing exploitation of the welfare system and maintaining immigration controls. In the context of state benefits, the measure was not manifestly without reasonable foundation. The same conclusion applied under Article 14 ECHR.
5. Articles 24 and 34 of the Charter created no general entitlement to social assistance. Article 34 was expressly subject to Union law and national law. The other Charter claims also failed. Section 17 of the Children Act 1989 provided a safety net, and Article 8 ECHR did not confer a general right to a home, housing costs or income support.
6. The public sector equality duty was satisfied. The defendants had undertaken statistical and equality analyses, recognised the differential impact on lone-parent women and children, and considered countervailing public-interest factors. The duty required due regard in substance; it did not require the defendants to select the policy most favourable to affected children.

First-instance judicial review proceedings. The judgment does not state any subsequent appellate decision.