Sanneh v Secretary of State for Work and Pensions

This Court of Appeal addressed whether non-EU third-country nationals who are the primary carers of EU-citizen children (so-called "Zambrano carers") acquire by EU law a right to reside from the point they become relationship-dependent on the child, and whether that right requires member states to afford them social assistance on the same basis as EU citizens lawfully resident in the host State. The court held that EU law (Articles 20 and 21 TFEU and the effective citizenship principle derived from the CJEU's Zambrano line of authority) confers on a Zambrano carer a right to reside and work from the time she satisfies the Zambrano criteria (the "First Date").

However, the court held that EU law does not require member states to grant Zambrano carers the same level of non-contributory social assistance as EU citizens generally. Instead, member states must provide such "basic support" as is necessary to enable the carer to support herself so as to remain the carer of the EU-citizen child within the EU; the level of benefits otherwise is governed by national law. The court concluded that the United Kingdom's November 2012 Amendment Regulations and related statutory provisions comply with EU law and the European Convention on Human Rights. The Secretary of State had also discharged the public sector equality duty (Equality Act 2010, s.149) in the circumstances described.

Background and parties: These consolidated appeals concerned third-country nationals (appellants) who are the primary carers of British-national children. They challenged the United Kingdom's treatment of such carers following CJEU jurisprudence on the so-called Zambrano principle. The Secretary of State for Work and Pensions and other public authorities were respondents; the AIRE Centre intervened for the appellants.

Nature of the claims / relief sought:

• The appellants sought entitlement to non-contributory social assistance and housing assistance on the same basis as EU citizens lawfully resident in the United Kingdom.
• They also challenged the November 2012 Amendment Regulations which disqualified Zambrano carers from habitual-residence-based benefits, argued that the nationality non-discrimination principle applied in their favour, and alleged failure to comply with the public sector equality duty (Equality Act 2010, s.149).

Procedural posture: The appeals came from a range of courts and tribunals (including the Upper Tribunal [2013] UKUT 490 (AAC), Croydon County Court, Birmingham County Court and the Administrative Court ([2013] EWHC 3874 (Admin)) and were heard in the Court of Appeal ([2015] EWCA Civ 49).

Issues framed by the court:

1. When does Zambrano status arise (First Date v Last Date)?
2. Does EU law confer on Zambrano carers a right to social assistance and, if so, to what extent?
3. Can Zambrano carers invoke the nationality non-discrimination principle (Article 18 TFEU) to obtain parity of treatment with EU citizens?
4. Whether the Secretary of State complied with the public sector equality duty when enacting the Amendment Regulations.

Reasoning and conclusions: The court reasoned that the effective citizenship principle (derived from Articles 20 and 21 TFEU and CJEU jurisprudence such as Zambrano, Baumbast and Chen) gives Zambrano carers an EU-law right to reside and to work from the moment they satisfy the Zambrano criteria (the First Date). That right is protective of the child's EU-citizenship status and must be practical and effective.

On social assistance, the court adopted a "basic support test": EU law requires member states to make available such social assistance as is essential to enable the Zambrano carer in need and unable to work to support herself so as to remain the child's carer within the EU, but EU law does not determine the precise level of benefits, which is a matter for national law. The EU cross-border social benefits legislative scheme (for example the Citizenship Directive 2004/38 and the Long-Term Residence Directive 2003/109) does not entitle Zambrano carers to the same benefits as economically active EU citizens and, following Dano, is to be treated as the exhaustive EU code as to when member states must provide social assistance to migrants.

The nationality non-discrimination principle (Article 18 TFEU) does not assist Zambrano carers who are third-country nationals; they cannot use Article 18 to obtain parity with EU nationals and reverse discrimination created by a member state is not prohibited by EU law. Any challenge under Article 14 ECHR would require showing the legislative policy was manifestly without foundation; the court concluded that the UK policy objectives (including protection of public finances and deterrence of benefits tourism) were not manifestly without foundation.

On the public sector equality duty, the court held the Secretary of State had carried out a proportionate, context-sensitive equality impact analysis in October 2012 and was not shown to have failed the duty.

Practical disposition: The court did not make a reference to the Court of Justice. It concluded that the Amendment Regulations comply with EU law and the Convention. On the individual appeals the court reinstated the First-tier Tribunal's decision in Sanneh (setting aside the Upper Tribunal), dismissed HC's appeal, remitted certain Birmingham appeals for determination consistent with the law at the date of claim, and dismissed other appeals or stayed parts pending related Supreme Court determinations as appropriate.

Appeal allowed in part. The Court of Appeal held that: (1) Zambrano carers obtain an EU-law right to reside and to work from the date they satisfy the Zambrano criteria (the First Date); (2) EU law does not require member states to pay Zambrano carers the same level of non-contributory social assistance as EU citizens generally but does require provision of "basic support" adequate to enable the carer to remain the child's carer within the EU; (3) the UK Amendment Regulations of November 2012 and the domestic benefit scheme fall within those limits and do not breach EU law or the Convention; (4) the nationality non-discrimination principle (Article 18 TFEU) does not entitle third-country Zambrano carers to parity with EU nationals; and (5) the Secretary of State complied with the public sector equality duty. The court therefore upheld the national scheme subject to the limited EU-law obligation to provide basic support and made case-specific orders (including reinstating the First-tier Tribunal decision in Sanneh and remitting unresolved Birmingham appeals for determination under the law applicable at the time of claim).

Appeals to the Court of Appeal from multiple decisions: (1) Upper Tribunal (Administrative Appeals Chamber) Judge Jacobs [2013] UKUT 490 (AAC); (2) Croydon County Court (3CR02096); (3) Birmingham County Court (BM30027A); and (4) Queen's Bench Division (Administrative Court) Supperstone J [2013] EWHC 3874 (Admin). The consolidated appeals were decided by the Court of Appeal in [2015] EWCA Civ 49.