Sanneh, R (on the application of) v The Secretary of State for Work and Pensions & Anor

The derivative residence rights recognised by article 20 TFEU arise only where refusal of residence or support to a non-EU primary carer would, in practice, compel the dependent EU citizen to leave EU territory. The inquiry is factual and evidence-based. It is not based on an irrebuttable assumption that lack of mainstream benefits will force departure. Support provided by another organ of the state, including temporary support under section 17 of the Children Act 1989, may be taken into account. Where the EU citizen’s right to reside is not in jeopardy, EU law is not engaged and the court need not consider interim relief or proportionality.

The claimant, a Gambian national and primary carer of her British citizen daughter, sought judicial review of refusals to make interim payments of income support, child tax credit and child benefit while statutory appeals concerning her entitlement were pending.

The domestic schemes either excluded interim payments during an appeal or provided no power to make them. The claimant relied on the derivative residence principle in Ruiz Zambrano v Office National de l’Emploi [2011] EUECJ C-34/09, arguing that lack of benefits would compel her and her daughter to leave the EU. The central issue was whether the daughter’s EU right of residence was actually in jeopardy.

1. Claim dismissed. The relevant decisions were lawful under domestic legislation. There was no power to make interim child tax credit payments; interim payments of income support and child benefit were prohibited while appeals were pending.
2. The decisive issue was whether refusal of the benefits would in fact compel the claimant, as the child’s non-EU primary carer, to leave the United Kingdom and thereby compel the child to leave EU territory. Following the approach in Harrison (Jamaica) & AB (Morocco) v Secretary of State for the Home Department [2012] EWCA Civ 1736, the question was factual and context-specific. Nothing less than such compulsion engages articles 20 and 21 TFEU.
3. The claimant had accommodation and support from Birmingham City Council under section 17 of the Children Act 1989, child maintenance and a right to work. She accepted that the Council’s support meant she would not realistically leave the United Kingdom during the determination of the substantive appeals. The availability of that support could not be disregarded merely because section 17 was intended to provide temporary assistance.
4. The court rejected the submission that Ruiz Zambrano required an irrebuttable assumption that a person unable to work or access benefits would leave the EU. Dereci v Bundesministerium für Inneres [2011] EUECJ C-256/11 and Harrison showed that the determinative question was whether departure would actually be compelled. Diminution in quality of life was insufficient unless it effectively produced that result.
5. As the child’s residence was not in jeopardy, EU law was not engaged. The court therefore declined to decide whether Factortame or Unibet would permit interim relief outside the statutory scheme in an appropriate case, or where the balance of convenience would lie.
6. Permission to proceed against HMRC was granted on the rolled-up hearing, but the substantive applications for judicial review against both defendants were refused.