UKSC 73, 15 November 2017
Lady Hale PSC, Lords Clarke, Wilson, Sumption and Carnwath JJSC.
The Supreme Court has held that legislation designed to limit the rights of Zambrano carers to claim certain types of social assistance, including assistance under Pt 7, Housing Act 1996, was lawful.
In Zambrano v Office nationale de l’emploi Case C-34/09;  QB 265 the Court of Justice of the European Union held that an EU member state could not take measures in respect of a non-EU citizen who was the primary carer (a “Zambrano carer”) of an EU citizen, where those measures effectively deprive that dependent EU citizen of the genuine enjoyment of his or her rights under EU law.
In response to the decision in Zambrano, the UK government introduced regulations which amended legislation to preclude Zambrano carers from claiming various forms of social assistance: (i) Social Security (Habitual Residence) (Amendment) Regulations 2012; (ii) Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012; (iii) Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012.
The appellant, an Algerian national, moved to the U.K. in 2009, initially with leave to remain, then overstaying. In 2010, she married a British national and had two children by him in 2011 and 2013, who were both British nationals. After the relationship came to an end, she sought help from Oldham CC, which provided her and her children with accommodation, together with £80.50 per week for subsistence and utilities, under s.17, Children Act 1989.
The appellant challenged the legality of the Regulations which had been introduced in response to Zambrano, contending that the denial of mainstream welfare and housing provision to a Zambrano carer was unlawful discrimination under either Article 21 of the EU Charter of Fundamental Rights and Freedoms (“the Charter”) and/or under Article 14 of the European Convention of Human Rights (“ECHR”).
The appellant further argued that, in EU law, once a right of residence is established, a Zambrano carer is automatically entitled to the same social security assistance as nationals of the host state, relying on Baumbast v Secretary of State for the Home Department  ECR I – 70.
The appellant was unsuccessful before the Court of Appeal:  EWCA Civ 49;  Q.B. 455;  H.L.R. 27. She appealed to the Supreme Court.
Her appeal was dismissed. The lead judgment was given by Lord Carnwath and there was a concurring judgment from Lady Hale. Lord Carnwath identified the following points:
(1) In Zambrano and subsequent cases, the reasoning of the CJEU turned solely on the risk that dependents of Zambrano carers might be forced to leave the EU, thereby being deprived of the enjoyment of their rights as EU citizens. The Zambrano right of residence is exceptional and is not triggered merely by the desirability of keeping the family together; it is not a right to any particular quality of life or standard of living.
(2) This case could be distinguished from Baumbast which concerned rights of residence that were not limited by domestic law but by EU law.
(3) The argument that a right of residence triggered a right to equal treatment under EU law relied on Article 21 of the Charter; however it was not immediately clear that the Charter applied to this case. The test for applicability of the Charter was not derivative from whether the appellant was personally within the scope of EU law but whether the Regulations cited above were implementing EU law. The limited financial support provided by the local authority to Mrs. HC and her children was sufficient so that the requirements of EU law were fulfilled. It followed that Mrs. HC could not rely on the Charter to establish a right to further financial assistance.
(4) Discrimination on the basis of immigration status is an accepted part of EU and national law and cannot in itself give rise to an issue under Article 14. Any differences in treatment between Zambrano carers and others only reflects the rules of EU law which created and regulate Zambrano carer status.
(5) The allocation of public funds in the social security context is primarily a matter for national authorities under the ECHR, and as the allocation was not “manifestly without reasonable foundation”; the objectives underlying the Regulations fell within the margin of discretion allowed to national governments.
(6) Section 17 of the Children Act 1989, while not forming an issue for the appeal, was an important aspect of the government’s response to the Zambrano principle. Although the responsibility to house a Zambrano carer alongside their EU national dependents derived from EU law, the allocation of that responsibility between central and local government was a matter of domestic law.
Lady Hale’s concurring judgment made a number of observations about the use of local authorities powers under s.17, Children Act 1989, in relation to Zambrano carers. Noting that the authority would have to review the children’s position after the judgment, she observed as follows, at .
“46. In carrying out that review, the local authority will no doubt bear in mind, not only their duties under section 17, but also their duty under section 11 of the Children Act 2004, to discharge all their functions having regard to the need to safeguard and promote the welfare of children, and their duty, under section 175 of the Education Act 2002, to exercise their education functions with a view to safeguarding and promoting the welfare of children. Safeguarding is not enough: their welfare has to be actively promoted. The authority will no doubt take into account that these are British children, born and brought up here, who have the right to remain here all their lives; they cannot therefore be compared with asylum-seeking children or the children of asylum-seeking parents, who may end up with no or only a limited right to remain. They will no doubt also wish to take into account the impact upon the proper development of these children of being denied a level of support equivalent to that of their peers, that is, the other British children around them whose families are dependent on income-related benefits. That level of support is not fixed at a level designed to lift children out of poverty, as officially defined, but at a level much closer to subsistence.”