Sanneh & Ors v Secretary of State for Work and Pensions

A third-country national who is the primary carer of a dependent EU citizen has an automatic derivative right to reside and work while the conditions established in Zambrano are met. The right does not arise only when removal is imminent.

EU law requires the state to provide an indigent carer who cannot work with enough support to meet the basic needs of the carer and child within the EU. It does not prescribe equal access to mainstream benefits or subject the amount of assistance to EU proportionality review.

Such carers cannot invoke EU nationality non-discrimination to obtain the benefits payable to lawfully resident EU citizens. Differentiation by immigration status may be justified under article 14 of the Convention unless the policy is manifestly without foundation.

Four related appeals concerned third-country nationals who were the primary carers of British children. The carers sought income-related benefits or housing assistance on the same basis as EU citizens lawfully resident in the United Kingdom. Regulations introduced in November 2012 expressly excluded persons holding derivative Zambrano rights from habitual-residence eligibility for specified benefits.

The appeals came respectively from the Upper Tribunal, Croydon County Court, Birmingham County Court and the Administrative Court. The principal lower-court decisions reported in the judgment were [2013] UKUT 490 (AAC) and [2013] EWHC 3874 (Admin).

The common questions were when a Zambrano right to reside arises; whether EU law requires social assistance and, if so, at what level; whether EU non-discrimination law requires equal benefit entitlement; and whether the Secretary of State complied with section 149 of the Equality Act 2010.

1. Disposition. Sanneh’s appeal was allowed, the Upper Tribunal’s order was set aside and the First-tier Tribunal’s order was restored. HC’s appeal was dismissed. Birmingham City Council’s three extant appeals were allowed and remitted unless agreed; its appeal concerning Sigala was dismissed. Scott’s appeal was dismissed on the common grounds, while her remaining ground was stayed.

2. A Zambrano carer has an automatic derivative right under article 20 TFEU to reside and work from the time when the qualifying relationship of dependency exists and removal would deprive the EU citizen of the genuine enjoyment of the substance of citizenship. The right does not spring into existence only when removal becomes imminent. Elias LJ agreed that lawful residence must exist throughout the period in which the conditions are met, rather than being a temporary immunity from enforcement.

3. The effective-citizenship principle requires the state to meet the basic needs of an indigent carer who cannot work where that support is necessary to enable the carer and EU citizen child to remain within the EU. Destitution can undermine effective citizenship as seriously as physical expulsion, and proof that the family would actually depart is unnecessary.

4. The derivative right does not confer equal entitlement to the social assistance payable to lawfully resident EU citizens. The EU cross-border benefits legislation does not give Zambrano carers an independent benefit entitlement. National law therefore determines the form and level of support, subject to the basic-support obligation. EU proportionality does not govern that level. On the evidence, the court could not find that the statutory safety net under section 17 of the Children Act 1989 failed to satisfy the obligation.

5. The Amendment Regulations did not produce direct nationality discrimination. Any relevant differentiation was indirect and principally based on immigration status. Third-country nationals could not invoke article 18 TFEU to obtain benefits outside the applicable EU legislative scheme. Article 21 of the EU Charter supplied no independent entitlement, and EU law permitted the reverse discrimination affecting British children.

6. Article 14 of the Convention was not infringed. The policy of protecting public finances, reinforcing immigration control and aligning these carers with other third-country nationals lacking unconditional leave was not manifestly without foundation.

7. The Secretary of State complied with the public sector equality duty in section 149 of the Equality Act 2010. The regulations restored the practical position preceding the Zambrano judgment, so the permissible scope of the equality analysis reflected that limited policy exercise. No preliminary reference was made to the CJEU.

1. Court of Appeal: Sanneh’s appeal was allowed; HC’s and the relevant part of Scott’s appeals were dismissed; Birmingham City Council’s extant appeals were allowed and remitted, while its Sigala appeal was dismissed.
2. Upper Tribunal: In [2013] UKUT 490 (AAC), the First-tier Tribunal’s decision allowing Sanneh’s social-security appeal was reversed. The Court of Appeal set that order aside and restored the First-tier Tribunal’s order.
3. Administrative Court: In [2013] EWHC 3874 (Admin), Supperstone J dismissed HC’s challenge to the Amendment Regulations. The Court of Appeal dismissed HC’s appeal.
4. County Courts: HHJ Ellis dismissed Scott’s statutory housing appeal. HHJ McKenna partly allowed the Merali group’s appeals after determining whether the claimants were Zambrano carers. The Court of Appeal remitted the extant Birmingham cases for determination under the Amendment Regulations.