R v Secretary of State for Work and Pensions and others

A derivative right of residence under article 20 TFEU protects an EU-citizen child from being obliged in practice to leave the Union. It confers no right to a particular quality of life, standard of living or access to non-contributory benefits.

Where domestic arrangements provide the practical support necessary to prevent departure, additional welfare provision is a matter of national law. Legislation withholding mainstream benefits from a Zambrano carer therefore does not implement EU law for article 51 of the Charter. In the social-welfare context, differential treatment also complies with article 14 of the Convention unless it is manifestly without reasonable foundation.

The appellant was an Algerian national and the primary carer of two dependent British children. She had a derivative right to reside and work in the United Kingdom because the children would otherwise be obliged to leave the European Union. Following domestic violence and separation from their father, the family received accommodation and subsistence support from a local authority under section 17 of the Children Act 1989.

The appellant challenged regulations excluding Zambrano carers from specified income-related benefits, child benefit, child tax credit, social housing and homelessness assistance. The Court of Appeal dismissed her challenge in [2015] EWCA Civ 49.

The Supreme Court considered whether EU law required more than effective protection against compelled departure; whether the exclusions engaged articles 21 and 51 of the Charter; and whether they constituted unjustified discrimination under article 14 of the Convention.

1. Appeal dismissed. Lord Carnwath, with whom Lord Clarke, Lord Wilson and Lord Sumption agreed, held that the Zambrano principle was specific and exceptional. It protects an EU citizen against being obliged in practice to leave the Union by requiring a derivative right of residence and, where necessary, permission for the carer to work. It creates no right to a particular quality of life, standard of living or entitlement to non-contributory benefits. The children had the legal and practical support necessary to remain in the Union.

2. The cases concerning the educational rights of children of migrant workers arose under different EU legislation. They did not establish that every EU-derived right of residence necessarily carried equal access to domestic welfare benefits. Here, the limitations came from domestic legislation, and their compatibility with EU law was the question to be decided.

3. Article 51 of the Charter applies to a member state only when it is implementing Union law. Personal possession of a derivative EU right was insufficient. Once EU law required only the support necessary to avoid compelled departure, any more generous provision was a national choice. The regulations excluding Zambrano carers from mainstream welfare provision therefore did not implement EU law. Article 21 of the Charter did not apply.

4. Assuming that the exclusions fell within the ambit of article 8 or article 1 of the First Protocol, article 14 of the Convention did not invalidate them. Immigration status could legitimately produce differential treatment. Decisions allocating limited public funds in social-security and welfare matters fall within a wide national discretion and are unlawful only when manifestly without reasonable foundation. The Government's cost, immigration-control and connection-based objectives met that standard.

5. Section 17 of the Children Act 1989 remained important. It permitted accommodation and assistance in kind or cash for children in need, although it created a target duty and left assessment to the local authority. Lord Carnwath and Lady Hale stressed that the primary objective was actively to promote the children's welfare and family upbringing. Consistency through national guidance was desirable.

6. Lady Hale agreed in the result but emphasised the children's position. She considered that administration of section 17 could be characterised as implementing EU law because it enabled the children to remain. Proper support should reflect their British citizenship, developmental needs and comparison with peers. Nevertheless, section 17 could satisfy the United Kingdom's EU obligations, so no reference to the Court of Justice was required.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously in [2017] UKSC 73.
2. Court of Appeal: The appellant's challenge to the regulations was dismissed in [2015] EWCA Civ 49. The Supreme Court held that its reasons were substantially the same.