Zambrano – Upcoming cases

Mr Justice Supperstone handed down judgment in R (HC) v SSWP [2013] EWHC 3874 (Admin) on 6 December 2013.

The Claimant, an Algerian national, had married a British national and had two children with him. When she left him because of domestic violence she sought section 17 assistance from Oldham MBC.  She was given financial and accommodation assistance but of course could not claim means-tested social security benefits or seek homelessness assistance because of her immigration status.

This judicial review claim was therefore brought against the SSWP & DCLG on the basis that the November 2012 regulations, excluding her such assistance, were unlawful because they discriminated against her. However the claim failed because factually it was held that because of the help provided by Social Services in Oldham she was not compelled to leave the UK.

The court also found that the Secretary of State’s decision to exclude her from being eligible for this assistance did not amount to unlawful discrimination (neither direct – the regulations impacting upon people not on the basis of their nationality rather immigration status – and the indirect discrimination was justified, i.e. it was a proportionate means of achieving a legitimate aim).  The case can be seen on Bailii.

As you know, on 10 April 2013 in R (Sanneh) v SSWP [2013] EWHC 793 (Admin) the Claimant, a Gambian national, had similarly failed "at the first hurdle" after the Administrative Court held that the provision of subsistence payments and accommodation under section 17 were sufficient to ensure she would not be compelled to leave the UK. Mr Justice Hickinbottom found that:

100.    As a matter of principle, EU law creates rights, but it is left to member states as to how those rights should be made effective and effectively protected within their territory. It would be remarkable if the European Court had laid down a particular way adequately to protect the right of residence of a minor with no EU ascendant carer relatives, which each member state would be bound to implement. That is simply not how the EU works.

101.    In fact, as cases such as Dereci and Harrison make clear, Zambrano is not to be construed as Mr Knafler contends. Those cases properly emphasise that the determinative question in right to reside cases based on articles 20 and 21 of the TFEU is whether, as a matter of fact, an EU citizen would be compelled to leave the EU to follow a non-EU national upon whom he is dependent. That does not envisage an irrebutable assumption, but rather a context specific and evidence driven investigation of whether there would or might be such compulsion. In this case, the Claimant concedes that, realistically, she will not be compelled to leave the United Kingdom in the foreseeable future.

This case is before the Court of Appeal on 18 December 2013.