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

The claimant, an Algerian national and parent of two British children, challenged amendments to social security, tax credit and housing regulations which exclude persons whose residence rights derive from the Zambrano doctrine from entitlement to mainstream benefits and housing assistance. The court held that Zambrano does not create a standalone entitlement to social welfare and that the relevant provisions of the Treaties and the Charter do not confer on third country nationals a right to non-discrimination under Article 18 TFEU. The court concluded that any differential impact of the Amending Regulations is based on immigration or residence status, not nationality, and that such indirect discrimination is justified as a proportionate means of protecting scarce public resources. The claim under the Public Sector Equality Duty was also rejected.

Background and parties:

• The claimant is an Algerian national who had overstayed and later lived with a British husband. She is the mother of two British children born in the United Kingdom. Following domestic violence she left her husband and, after initial refusal, the local authority provided interim accommodation and financial support under section 17 of the Children Act 1989.
• The claimant challenged three pieces of secondary legislation (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) on grounds of incompatibility with EU law and unlawful discrimination, reliance on the Charter, and breach of the Public Sector Equality Duty (section 149 Equality Act 2010).

Nature of application and relief sought:

• The claimant sought declarations that the Amending Regulations were unlawful because they denied her and/or her British children access to mainstream welfare benefits and housing entitlements in a manner incompatible with EU law and human rights obligations.

Issues framed by the court:

• Whether the Zambrano doctrine gives rise to a right to social benefits or to non-discrimination under Article 18 TFEU and related Charter provisions for third country nationals who are carers of EU citizen children;
• Whether the Amending Regulations indirectly or directly discriminate on grounds of nationality or sex and, if so, whether such discrimination is justified;
• Whether Articles 24 and 34 of the Charter, Articles 8 and 14 ECHR and the Public Sector Equality Duty required different legislative provision or assessment of the best interests of the children affected.

Court’s reasoning and conclusions:

• The court accepted that Zambrano confers a narrow, derivative right of residence (and, where necessary, to work) on a third country national parent to prevent the child being forced to leave EU territory. However, Zambrano does not confer an entitlement to social security or mainstream welfare benefits.
• Article 18 TFEU and Article 21 of the Charter protect EU nationals from discrimination on grounds of nationality; they do not extend a freestanding non-discrimination right to third country nationals, a point reinforced by the Court of Justice authority cited in the judgment. Consequently the claimant could not rely on Article 18 to assert a direct discrimination claim based on her nationality.
• The Amending Regulations are framed by reference to residence/immigration status rather than nationality and any differential effect is therefore indirect. The court applied the established margin of appreciation in socio-economic policy and concluded that the legislative measures pursuing the protection of scarce public resources and limiting entitlement to benefits to those entitled under domestic and EU law were objectively justifiable and proportionate.
• Claims under the Charter (including Articles 24 and 34) and the ECHR (including Article 8 and Article 14) were considered within the same framework. The court held that Articles of the Charter relied upon did not create a free-standing entitlement to welfare where neither EU nor domestic law provided it, and that the safety net under section 17 of the Children Act 1989 and other possible routes (child maintenance, immigration routes) meant the claimant was not compelled to leave the UK. The court therefore rejected breaches of those instruments.
• The Public Sector Equality Duty challenge failed because the government had considered equality impacts, including the disproportionate effect on lone parents (predominantly women), and the decision-making fell within a reasonable assessment of competing public interests.

Disposition:

• The claim was dismissed. The court concluded the Amending Regulations were lawful on the grounds advanced and that the claimant’s alternative equality and human rights arguments did not succeed.

The claim is dismissed. The court held that Zambrano confers only a narrow derivative right of residence (and, where necessary, to work) to prevent an EU citizen child being compelled to leave the EU; it does not create a right to social security or mainstream welfare benefits. Article 18 TFEU does not provide protection for third country nationals in the claimant's position and the Amending Regulations, framed by reference to residence status, do not unlawfully discriminate. Any indirect discrimination is justified as a proportionate means of protecting public resources, and the Public Sector Equality Duty claim fails on the facts.